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EEOC to Employers: Reevaluate Your Policies on Criminal Background Checks

As the digital age has made arrest and conviction records readily available, criminal background checks have become an important tool in the hiring process.  In a recent study, ninety-two percent of responding employers said that they use criminal background checks to evaluate job candidates.  Employers see criminal background checks as a way to combat fraud, theft, and workplace violence.  Employers also view criminal background checks as a way to prevent negligent hiring lawsuits.

However, given the prevailing gap in incarceration rates between whites and minorities, the Equal Employment Opportunity Commission (“EEOC”) is concerned that some employers may be using the checks to discriminate against job candidates based on race.  The following are several statistics the EEOC cites for its concerns.  One in four American adults has an arrest or conviction record that may prevent them from being hired. Arrest and incarceration rates are disproportionately high for African American and Hispanic men. In 2010, Hispanic men had an imprisonment rate close to two and a half times higher than white men; black men’s imprisonment rate was nearly seven times higher than that for white men.

To address these concerns, the EEOC has issued new guidance on the use of criminal background checks in to ensure that employers are not violating Title VII of the Civil Rights Act of 1964 (“Title VII”).  Title VII prohibits employment discrimination based on race, color, religion, sex, or national origin (“protected groups”).  The new EEOC guidelines put the burden on employers to show their background check policies are narrowly tailored to address their legitimate business needs.  Disqualifying a candidate simply on the basis of any criminal record is too broad, according to the EEOC, and could be a Title VII violation.

So what should employers do to guarantee that they are not violating Title VII and are protecting their company’s best interests? Employers should consider the following:

  1. Do not rely on arrest records.  Except in limited certain exceptions, the fact an arrest has occurred does not establish that criminal conduct has occurred.  In addition to the recent EEOC guidance, Illinois employers should be careful when using arrest records to make employment decisions because the Illinois Human Rights Act also generally prohibits the use of arrest records in making employment decisions.
  2. Eliminate blanket policies of excluding each applicant with any conviction records, as these policies are overlybroad and do not comport with the EEOC’s guidelines.  Instead, employers should adopt policies and procedures to link specific arrests or convictions to the inherent risks of the particular position.
  3. Employers should adopt written background check policies that conform to the EEOC’s guidance.  According to the EEOC, the policy should identify (a) the essential job requirements, (b) the specific offenses that demonstrate unfitness for the job, and (c) the duration of the exclusion for the specified criminal conduct.  The EEOC also recommends keeping a written record of the justification for the policy and the documents related to the adoption of the policy.
  4. Managers, hiring officials and decision makers should be trained on how to apply the employer’s criminal background check policy and procedures in a manner consistent with Title VII so as to not discriminate against protected groups.

By following the EEOC’s guidance, an employer may avoid some or all of the costs of defending claims that it unfairly discriminated against job applicants. It would behoove employers to assess their current use of criminal background checks during their hiring process and ensure they are in compliance with state and federal law.  I strongly recommend you consult with your attorney when creating or modifying your employment policies.

Jeffrey Powell is a Senior Associate at Reno & Zahm LLP, where he focuses on civil litigation, business law, and employment law.  For more information, contact Mr. Powell at 815.987.4050 or visit www.renozahm.com.  Please be advised that this article is for informational purposes only and is not intended to be legal advice.