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Using Criminal Background Checks in the Hiring Process; Handle With Care

Posted in CHRO & EEOC, Discrimination & Harassment, Highlight, Human Resources (HR) Compliance, Laws and Regulations

The Office of Legislative Research, whom I’ve praised in several posts before (here and here), recently issued a report on the consequences of a felony conviction on employment. 

Overall, it does a good job summarizing the issues when it comes to state employment.

But later on in the publication it states the following when discussing the federal restrictions on employer use of criminal background information:

Asking job applicants to indicate whether they have been convicted of a crime is permissible but Title VII of the Civil Rights Act of 1964 appears to restrict an employer’s ability to use criminal background information in the hiring process (42 USC. § 2000e, et seq.). The Equal Employment Opportunities Commission (EEOC), the federal agency that enforces Title VII, has decided that disqualifying people who have criminal records from jobs is discriminatory because the practice disproportionately affects African American and Hispanic men. (Those two groups generally have higher criminal conviction rates than do Caucasian men.)

The EEOC has ruled repeatedly that covered employers cannot simply bar felons from consideration, but must show that a conviction-based disqualification is justified by “business necessity.” The legal test requires employers to examine the (1) nature and gravity of the offense or offenses, (2) length of time since the conviction or completion of sentence, and (3) nature of the job held or sought. Under this test, employers must consider the job-relatedness of a conviction, the circumstances of the offense, and the number of offenses (EEOC Guidance 915.002, April 25, 2012: http://www.eeoc.gov/laws/guidance/upload/arrest_conviction.pdf).

Back in April, I discussed the EEOC’s latest guidance at length.  As a result, I think the OLR’s report has misstated the EEOC’s position and made it sound like the rules on criminal background check are set in stone at the federal level.  They are not.

Indeed, the EEOC appears to be overreaching in its latest application of Title VII.  Courts have rarely interpreted it this broadly and thus the suggestion that Title VII “appears to restrict an employer’s ability” to use convictions is an overstatement.

Moreover, the OLR report’s suggestion that the EEOC has “ruled repeatedly” on the issue is also misleading; even the EEOC’s report suggests that it differs from some prior guidance.  And, contrary to the OLR report, the EEOC has not “decided” that it is “discriminatory” for employers to disqualify people who have criminal records from jobs; it merely issued guidance on the subject.  Indeed, the EEOC recognizes that there may be instances were it is not discriminatory.

What is important to understand is that ”guidance” issued by the EEOC (which is what the April EEOC report is) is not the same as a regulation.  Indeed, even the EEOC says its guidance on criminal history is only “designed to be a resource for employers, employment agencies, and unions covered by Title VII; for applicants and employees; and for EEOC enforcement staff.”  It is not, as the OLR has said, a rule per se. 

A better explanation would be that the EEOC recently issued guidance that suggested to employers the blanket and blind use of background check information could have a disparate impact against some protected classes.  Thus, employers who use such information should consider the business needs of doing so and ensure that the use of such checks is fair. 

From my perspective, employers who seek to use criminal background checks to make hiring decision would be wise to read the guidance itself and seek appropriate counsel.  There are some best practices from the EEOC on the subject, but how employers use that guidance and in what ways, remains up in the air.