Last year, the Equal Employment Opportunity Commission issued an enforcement guidance cautioning employers about making employment decisions based on applicants' criminal histories. The EEOC stated that decisions based on criminal backgrounds may have a disparate impact on minority candidates, and that employers need to make individual decisions based on the particular offense and its relevance to the job at hand.

In Eldridge v. Municipality of Norristown, the Third Circuit Court of Appeals recently concluded that the mere act of engaging in criminal background checks of applicants does not violate Title VII. The case was filed by a human resource manager who claimed that she was terminated in retaliation for complaining that two minority candidates for positions with the town were required to undergo criminal background checks. She alleged at the time that such searches violated their civil rights.

The Third Circuit affirmed summary judgment for the employer. The court concluded that the plaintiff never alleged any actual discrimination against the applicants. The mere act of requiring criminal background checks or using such backgrounds as part of the decision making process for candidates does not violate Title VII. The plaintiff did not engage in any protected activity that could form the basis for a retaliation claim under Title VII because she never complained that the criminal background checks were used in a discriminatory manner. She did not claim that non-minority candidates' histories were not reviewed, or that minority applicants were rejected based on discriminatory criteria.

The court rejected the plaintiff's contention that objections to the use of criminal background checks as part of the hiring process was a protected activity under Title VII. This decision is consistent with the EEOC guidance. The agency never advised employers that such searches are in and of themselves discriminatory. Only the use of this information when applied to actual hiring decisions raises the possibility of discrimination under Title VII.