As pre-employment criminal background checks have become the norm, employers must take care to ensure compliance with federal and state laws regarding use of criminal conviction data. Because of historically disproportionate rates of incarceration among African-American and Latino individuals, the EEOC has long considered exclusion of applicants based on criminal conviction history to be per se evidence of race discrimination.

According to the EEOC, a company’s criminal conviction policy that disparately impacts African-American or Latino employees violates Title VII unless the employer can show that the policy is job-related and consistent with business necessity. In 1987, the EEOC issued a Policy Statement on the Issue of Conviction Records under Title VII , which provides that in order to meet this standard, companies must conduct an individualized analysis, considering three factors for each applicant:

  1. The nature and gravity of the offense(s)
  2. The time that has passed since the conviction and/or completion of the sentence
  3. The nature of the job sought

In 2008, the EEOC announced that discrimination related to criminal background checks was a key action items of its five-year E-RACE Initiative aimed at eliminating 21st century manifestations of discrimination. Accordingly, the agency has aggressively conducted investigations alleging discrimination based on applicants’ criminal backgrounds. This issue promises to remain a hot area of enforcement. On July 26, 2011, the EEOC held a public meeting to “Examine Arrest and Conviction Records as a Hiring Barrier”. Although the EEOC did not announce whether it will update the 1987 policy statement, commissioners in attendance made it clear that this issue remains a high-priority enforcement area.

State and local jurisdictions also have passed legislation addressing criminal background checks. For example, Philadelphia’s Fair Criminal Record Screening Standards Ordinance, which became effective in July 2011, prohibits employers from requiring job applicants to disclose their criminal histories prior to the first job interview. Employers that do not conduct interviews are absolutely barred from making any inquiries or gathering any information about an applicant’s conviction history.

Employers doing business in Philadelphia should review and update their policies as necessary to ensure compliance with the new ordinance. On a broader level, all employers should review their criminal background check policies to ensure compliance with federal, state, and local law. At a minimum, instead of absolute bans on hiring employees with criminal convictions, companies must ensure that they are performing an individualized analysis of each applicant’s situation, in accord with the factors described above.