EEOC Enforcement Guidelines on Criminal Background Checks

We recently discussed a National Consumer Law Center report that explains that criminal background checks are often inaccurate. That's a serious concern for a job applicant whose prospective employer uses a background check as an employment screening device.

Morever, as Michael A. Filoromo III and Debra S. Katz explain in this article, a criminal background check, even when accurate, can be a tool of unlawful discrimination, according to new Equal Employment Opportunity Commission enforcement guidelines. Here's an excerpt from the Filoromo/Katz article:

The EEOC's new enforcement guidelines address both disparate-treatment and disparate impact-discrimination as they relate to arrest and conviction records. Although those with a criminal record are not directly protected by Title VII, the EEOC has long recognized that an employer's consideration of criminal records can result in impermissible discrimination. The EEOC guidance focuses on race and national-origin discrimination, the two legally protected classes that the EEOC determined are most often implicated in the improper use of criminal history in employment decisions. Citing precedent from federal appellate courts, the new guidelines note that blanket policies adversely affecting any employee or applicant with a criminal history often have a disparate impact based on prohibited characteristics. The EEOC therefore provides extensive guidance on determining whether an employer's criminal record policy is properly related to a job necessity. The EEOC cites with approval the factors set forth by the U.S. Court of Appeals for the Eighth Circuit in Green v. Missouri Pacific Railroad. The court held that employment decisions should take into account: (1) the nature and gravity of the offense or conduct; (2) the time that has passed since the offense or conduct and/or completion of the sentence; and (3) the nature of the job held or sought. In its discussion of these factors, the EEOC also noted the importance of distinguishing between arrests, which do not necessarily reflect misconduct, and convictions, which typically do. The new guidance also clarifies what constitutes "individualized assessment," including the right to present facts and circumstances of the initial conviction, and to provide evidence of rehabilitation.

Go here to view EEOC's home page for the new guidelines, including a link to the guidelines themselves.

 

Comments

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[Mike Sanborn]

The EEOC's new guidelines will have a significant impact on employers. Pre-employ attorneys and compliance experts are working to provide answers to your questions about EEOC guidance changes. Visit http://portal.pre-employ.com/eeoc-report.php to get Pre-Employ's findings, analysis and direction on establishing best hiring practices based on the new EEOC Enforcement Guidance.