EEOC urges caution on criminal background checks

The EEOC last week issued guidance reinforcing its long-standing view that when employers use criminal histories to screen out job applicants, it can violate Title VII of the Civil Rights Act by having a disparate impact on minorities.

EEOC Enforcement Guidance #915.002 makes clear that the commission recommends against asking applications about criminal convictions on job applications. “If you are an employer, this is required reading for your hiring officers,” said Pamela Devata, an attorney with the Seyfarth Shaw law firm who specializes in criminal background check issues.

The takeaway: If job applications—or hiring managers—ask about applicants’ criminal conviction histories, employers better be able to prove they have a good business reason for seeking the information.

The guidance also makes clear that the EEOC never considers it appropriate to ask applicants if they have ever been arrested. It says knowing about arrest records is not “consistent with business necessity.”

The guidance comes hard on the heels of Pepsi’s decision earlier this year to pay $3.1 million to settle EEOC charges that it discriminated against minorities when it refused to hire applicants with arrest records.

Surveys show that nine out of 10 employers subject some or all job candidates to criminal background checks. The goal: Combatting employee theft and fraud, screening out potentially violent applicants and limiting liability for negligent hiring.

In a statement, the Society for Human Resource Management said it “considers criminal background checks an appropriate tool to help employers make informed hiring decisions while ensuring the safety and well-being of their employees and customers.”

The EEOC has long contended that criminal background checks discriminate against minority job applicants. However, this is the first time the commission has set out formal guidance on the issue.

An EEOC statement noted, “While Title VII does not prohibit an employer from requiring applicants or employees to provide information about arrests, convictions or incarceration, it is unlawful to discriminate in employment based on race, color, national origin, religion, or sex.

Officially designed to help EEOC investigators scrutinize hiring practices, the guidance is also a roadmap employers should follow.

If employers do discover that an applicant has been convicted of a crime, the guidance says they can help avoid Title VII liability by conducting an “individualized assessment” that considers:

• The nature and gravity of the offense or conduct

• The time that has passed since the offense occurred or a sentence was served

• The nature of the job.

The guidance also offers the following best practices for employers that consider criminal record information when making employment decisions.

1. Eliminate policies or practices that exclude people from employment based on any criminal record.
2. Train managers, hiring officials and decision-makers about Title VII and its prohibition on employment discrimination.
3. Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct. The policy should require identifying essential job requirements and the actual circumstances under which the jobs are performed, along with specific criminal offenses that may demonstrate unfitness for performing the jobs.  
4. Train managers, hiring officials, and decision-makers on how to implement the policy and procedures consistent with Title VII.
5. When asking questions about criminal records, limit inquiries to records for which exclusion would be job related for the position in question and consistent with business necessity.
6. Keep information about applicants’ and employees’ criminal records confidential. Only use it for the purpose for which it was intended.

Advice: Now is the time to review how you use criminal background checks in your application and hiring processes. Can you say with certainty that they would satisfy and EEOC investigator? If not, it’s time to talk to your attorney.

Note: The EEOC has prepared and question-and-answer document about its criminal history guidance. Click here to read it.

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