Legal Ease


EEOC Guidance Around Use of Criminal Background Checks Could Impact Hiring Practices


by Richard D. Alaniz


A criminal background check for job applicants has become standard operating procedure for many companies. However, companies that routinely conduct criminal background checks should take a hard look at their current policies and procedures. In April, the U.S. Equal Employment Opportunity Commission (EEOC) issued new guidance about the use of arrest and con- viction records in hiring. While the guidance does not ban the use of criminal background checks, the EEOC reiterated that us- ing criminal history as a hiring criterion could lead to discrimi- nation charges under Title VII of the Civil Rights Acts of 1964. According to the EEOC, the latest guidance “builds on longstanding court decisions and existing guidance documents that the U.S. Equal Employment Opportunity Commission (EEOC) issued more than 20 years ago.” According to the EEOC, the latest guidance “builds on longstanding court decisions and existing guidance documents that the [EEOC] issued over twenty years ago.” “The new guid- ance clarifies and updates the EEOC’s longstanding policy con- cerning the use of arrest and conviction records in employment, which will assist job seekers, employees, employers, and many other agency stakeholders,” stated EEOC Chair Jacqueline A. Berrien when the guidance was released. Employers need to be- come familiar with the new guidance so they can remain com- pliant with EEOC regulations and insulate their organizations from potential lawsuits.


The Updated Guidance Several of the key points in the guidance include:


• Criminal Records, Disparate Treatment and Disparate Impact Under Title VII, organizations may be liable for discrimi-


nation claims when their employment practices lead to disparate treatment or disparate impact. The guidance addresses how the use of criminal background checks could lead to either type of discrimination. In “disparate treatment” cases, employers may be liable for


Title VII violations if they treat applicants or employees differ- ently because of race, national origin or other protected statuses.


The EEOC highlights several ways it may determine that


an employer’s policies cause disparate treatment liability. These can include: • Biased statements • Inconsistencies in the hiring process • “Similarly situated comparators” • Employment testing • Statistical evidence


Employers may also create “disparate impact” liability when seemingly non-discriminatory policies or practices dis- proportionately screen out a protected group or if employers fail to demonstrate that policies or practices leading to disparate impact are job related and consistent with business necessity. When employers review their policies on criminal back-


ground checks for disparate impact, the EEOC suggests that they first identify the policy or practice that could cause dispa- rate impact. Then, employers need to consider how those poli- cies and practices could disproportionately impact protected groups. • Checks Must Be Job Related and Consistent with Busi- ness Necessity Under Title VII, employers can successfully defend them- selves against disparate impact discrimination claims if they can prove that their policies and practices are job related and consistent with business necessity. The EEOC guidance points to two circumstances where


employers that use criminal background checks can defend those checks as job related and consistent with business ne- cessity. One is when employers validate the criminal conduct


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20 August 2012


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