On April 25, the EEOC approved enforcement guidance on an employer’s use of criminal background checks in making hiring decisions. By a 4-1 vote, the EEOC clarified that a criminal background check is not unlawful.
BUT, the Commission explained its view that the use of criminal histories can be discriminatory in “impact” on minorities and will result in liability for employers if they cannot show “business necessity” for rejecting an applicant based on the applicant’s criminal past.
A few items of note:
- Use of arrest records has always been suspect. Statistics showed that minorities were significantly more likely to be arrested than non-minorities; given that all are presumed innocent until proven guilty, considering arrest records was often a “red flag” for the Commission in investigations.
- Use of conviction records, on the other hand, generally was considered appropriate. In fact, employers in some industries are required to exclude applicants based on certain type of convictions (i.e., daycare centers have to exclude persons convicted of child abuse or sexual assault). But, what was once considered a “safe haven” (i.e., using conviction records) has grown more suspect in recent years.
Given this growing suspicion of conviction records, and in light of the EEOC guidance, savvy employers should:
- Continue to conduct a criminal background check to avoid negligent hiring claims; some advocates asked for guidance “banning the box” (i.e., banning applications that asked for an applicant to disclose past convictions), but the EEOC guidance did not go that far;
- Not automatically exclude any applicant on the basis of a past conviction; rather, the employer should conduct an “individualized assessment” of the job sought and the crime for which the applicant had been convicted, including the passage of time since the conviction; the guidance calls for such an “individualized assessment;”
- Continue to comply with federal, state or local laws requiring the exclusions of applicants with certain criminal records; however, in a surprisingly clueless provision of the guidance, the EEOC did not recognize an employer’s compliance with such requirements in other laws as a “safe haven” defense to Title VII liability.
- In addition, this guidance generally applies to disparate impact cases; however, look for applicants who were excluded based on a criminal history to use the guidance in attacking as discriminatory an employer’s use of criminal history in disparate treatment cases, especially if the employer fails to conduct an “individualized assessment.”
This guidance, as you might expect, likely will be fodder for upcoming political discourse. Of particular concern to critics is the EEOC’s apparent view that its guidance could trump state or local laws that exclude applicants with certain convictions from certain jobs, or that an employer in certain clear cases would still have to conduct an “individualized assessment.”