Throughout this series, we have touched on facially neutral policies which, although not motivated by unlawful discrimination, have a discriminatory effect on certain protected classes. For over 40 years, the courts have recognized this so-called “disparate impact” theory of discrimination.
But in 2012 when the EEOC took the position that criminal background checks of employees can have a disparate impact on racial minorities, it took the world of employment law by surprise. In a 2012 Guidance Bulletin, the EEOC found that employers conducting criminal background checks violate Title VII when “criminal record screening policy or practice disproportionately screens out a Title VII-protected group.” Ultimately, it is the EEOC’s position that employers must justify their use of criminal background checks by showing that they are “job-related for the position [sought] and consistent with business necessity.” The EEOC believes this rule is necessary given statistics which show that 28% of all arrests were African-Americans even though they comprise only 14% of the general population.
Although the EEOC continues to take this position today, it does so with minimal support. It has brought – and lost – two cases against employers asserting this disparate impact theory. And, Attorneys General from eight states penned a joint letter to the EEOC expressing concern that the EEOC’s 2012 Enforcement Guidance and litigation are “quintessential example[s] of gross federal overreach.”
In fact, employers have various legitimate reasons for conducting background checks on candidates and employees, such as avoiding theft and fraud, preventing workplace violence, and limiting potential negligent hiring claims. Indeed, as any person who has ever applied for a job with the federal government knows, the government itself, including the EEOC, conducts background checks on applicants.
Is this the future of the EEOC? Or is it merely a case of a political body taking a political position consistent with the political views of the administration that appointed its members? It remains to be seen. But, to be sure, the EEOC has backed off the aggressive posture it took in 2012 and has filed few, if any lawsuits challenging background check policies. No reported court decisions we could find supported the EEOC’s rationale.
This is, however, a shot across the bow from the EEOC. For years employers conducting criminal background checks aimed for compliance with the Fair Credit Reporting Act, but thought nothing of the notion that discrimination laws could also potentially apply. While the EEOC has backed off on background checks, employers should take nothing for granted when it comes to the EEOC in the future.