Gone are the days when employers could simplify the hiring process with blanket policies requiring criminal background checks of all applicants and excluding an individual from employment based solely on a prior conviction. Two new trends are requiring employers to rethink their blanket criminal background check policies in favor of individualized approaches: (1) the Equal Employment Opportunity Commission’s (“EEOC”) April 25, 2012 Enforcement Guidance; and (2) new private-sector employer ban-the-box laws that are popping up in state and local governments across the country.  Many employers now fear that these two new trends will result in criminals becoming a protected class.

The EEOC Is Aggressively Enforcing Its Guidance:

The EEOC remains undeterred in its investigative and enforcement efforts of its criminal history guidance, which serves as a warning to private-sector employers that they can be exposed to substantial liability unless they more narrowly tailor their use of arrests and criminal convictions in making hiring and employment decisions.  The EEOC hasn’t gone so far as to state that the use of criminal background checks in hiring and employment decisions is per se evidence of racial discrimination (except it does hold that view as to arrest records).  But the EEOC does state that whenever a minority applicant is excluded from employment because of a criminal background check, that national data “supports” a finding of racial discrimination due to disproportionate rates of minority incarceration rates vis-à-vis others.  Seemingly, employers can—and are being—investigated by the EEOC for conducting across-the-board or blanket criminal background checks regardless of whether there is evidence of overt racial discrimination and discriminatory intent because, as the EEOC maintains, the mere exclusion of a minority applicant because of a criminal conviction “supports” a finding of racial discrimination.

And the EEOC isn’t afraid to go to court to make its point.  For example, in June 2013, the EEOC filed lawsuits against both a BMW manufacturing facility in South Carolina and discount retailer Dollar General for alleged civil rights violations under Title VII of the Civil Rights Act of 1964.  Specifically, the EEOC alleges that the companies disproportionately screened out African American applicants from jobs with criminal background check policies that weren’t job related and consistent with business necessity.  The EEOC also alleges that the companies either applied their polices as a blanket exclusion or failed to conduct an individualized assessment of: (1) the nature and gravity of the offense; (2) the time that has passed since the conviction and/or completion of the sentence; and (3) the nature of the job held or sought.  As a result, according to the EEOC, otherwise qualified African American applicants were denied jobs.

The EEOC Recommends, At A Minimum, A “Ban-The-Box” Approach:

Unlike criminal convictions, arrest records don’t establish criminal culpability, and the EEOC maintains that employers shouldn’t use of them in hiring decisions.  The EEOC  acknowledges that an adverse employment decision based on the underlying conduct, rather than the arrest, can make an individual unfit for employment.  But how is an employer to investigate such conduct—only by talking to that individual and making a credibility determination, by reviewing police reports, or some other measures?  Most employers don’t have the time or inclination to take on such an investigation. 

And when can employers even inquire about an applicant’s prior convictions?  The EEOC recommends that employers don’t ask about convictions on job applications as it can be a barrier to employment.  If they want to ask about criminal history, employers should push the question back to later in the process, for example, after an initial interview or after a conditional offer of employment is made.  And, the EEOC cautions, employers should only ask about that which is job related.

This is consistent with numerous state and local governments across the country that have “banned the box,” effectively removing questions related to criminal convictions on job applications.  There are currently state-wide private sector employer ban-the-box laws in Hawaii, Massachusetts, Minnesota, and Rhode Island.  There are also ban-the-box laws applying to private sector employers and government contractors in cities and counties in California, Connecticut, Michigan, New Jersey, New York, Pennsylvania, and Washington.  The ban-the-box laws in the cities of Buffalo, Philadelphia, Newark, and Seattle apply to all private-sector employers.  And the government contractor ban-the-box laws in the remaining cities and counties aren’t as limited as they may seem.  The newest such law that was passed in Richmond, California on July 30, 2013 applies to any person who is a City of Richmond financial assistance recipient, lessee, contractor, or subcontractor and who employs the equivalent of ten or more full-time employees in their total workforce.  So this limitation on “government contractors” actually has a pretty broad reach.

In addition to “banning the box,” the EEOC also recommends that employers undergo an individualized assessment with each applicant, consisting of several factors, before an adverse employment decision is made based on criminal history information.  This can be extremely burdensome on employers, especially those with large volumes of hiring or attrition. 

The culmination of the EEOC’s aggressive enforcement of its guidance and the almost monthly enactment of new private sector ban-the-box laws has created a new criminal background check minefield.  Stay tuned for Part Two later this week for some tips on navigating through this minefield.