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Pre-Hire Testing and Background Check Advice/Defense

Video description: A three-minute, animated video for employers and HR professionals who are interested in learning more about how to minimize the risk and maximize the rewards of using talent selection tools.

In recent years, the EEOC has vigorously pursued its systemic enforcement initiative to identify and eliminate any facially-neutral practices that have disparate impact on protected classes. Together with private class litigation, this initiative puts pre-employment selection tools squarely in the crosshairs. Nilan Johnson Lewis has significant experience counseling employers regarding their use of pre-employment assessments (including personality tests, skills assessments, and medical exams), criminal background checks, and other talent-selection tools and defending them in investigations and litigation arising from those practices.

Our comfort with statistical analysis, fluency in professional standards from the fields of industrial-organizational psychology and criminology, and expertise implementing cutting-edge “validation” strategies enable us to help our clients implement selection tools that maximize their return on investment while staying out of the EEOC’s and plaintiffs’ sights. If our clients do find themselves the subject of a systemic investigation or class lawsuit, we bring those same skills to bear to reduce their exposure and drive favorable resolutions.

Representative Matters

  • McDade, et al. v. Target Corporation (S.D.N.Y.): Defended a Fortune 50 employer against a nationwide Title VII class claim alleging that its criminal background checks had a disparate impact on African American and Hispanic applicants. Negotiated a settlement that was far lower than comparable claims against other employers.
  • EEOC (Chicago Office) v. X Corporation: Defended Fortune 50 employer against a nationwide investigation alleging that the employer’s criminal background check policy violated Title VII of the Civil Rights Act of 1964. The EEOC agreed not to commence litigation.
  • EEOC (Minneapolis Office) v. X Corporation (Commissioner’s Charge): Defended a Fortune 50 employer against a Commissioner’s Charge of discrimination alleging a nationwide class claim. The EEOC claimed that the employer’s pre-employment tests constituted a medical examination in violation of the ADA and had a disparate impact based upon gender, race, and national origin. Negotiated a resolution with the EEOC.
  • Wynn, et al. v. Wells Fargo (W.D. Wis.): Defended against a national class action under the Fair Credit Reporting Act. Negotiated individual resolutions with the named plaintiffs, after which the class claims were dismissed.
  • Ankarlo v. Wells Fargo (D. Minn.): Defended against a national class action under the Fair Credit Reporting Act. Negotiated an individual resolution with the named plaintiff, after which the class claims were dismissed.
  • Just v. Target Corporation (D. Minn.): Defended against a national class action under the Fair Credit Reporting Act. Won motion to dismiss, and then resolved individual claim on appeal.
  • Freckleton v. Target Corporation (D. Md.): Defended against a national class action under the Fair Credit Reporting Act. Negotiated a resolution.

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