EEOC amps up attack on background checks

by McAfee & Taft
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On April 25, 2012, the Equal Employment Opportunity Commission (EEOC) issued its Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964. Although disclaiming any authority to prohibit employers from obtaining or using criminal history information concerning applicants or employees, the EEOC explained its purpose was to “[seek] to ensure that such information is not used in a discriminatory way.” The 2012 Enforcement Guidance was just the beginning of the EEOC’s effort to curtail employers from using criminal history information. Today, an employer reviewing eeoc.gov will find the following “advisories”:

fingerprintingIn summary, these EEOC advisories warn that a reliance on criminal history when making employment decisions can disproportionately exclude applicants of particular races or national origins.

Some states and cities have followed the EEOC’s lead. For example, last month Illinois’ governor signed a law prohibiting employers from seeking information from an applicant about their criminal history until after the employer concluded the applicant was qualified for the job. A recent decision demonstrates the EEOC has moved its attack on employers’ use of background information to our courts.

Dollar General operates discount retail stores throughout the United States. Since at least 2004, Dollar General’s hiring process included conducting criminal background checks on potential employees. Claiming that the background check and the way Dollar General used the information disproportionately disqualified African –American applicants, the EEOC filed a federal lawsuit against the store contending the practice violated Title VII. Here’s the most recent development in the lawsuit: the federal court ordered Dollar General to turn over to the EEOC documents and information about its conditional hires, background screening, and business reasons for the screening and hiring decisions going back to 2004.

The EEOC’s focus on employers’ use of criminal history information is not likely to wane any time soon. Nonetheless, many employers will still find background check information important when making hiring decisions. If you use criminal history information in your hiring process, consider the following suggestions:

  • Don’t base a “no hire” decision solely on an applicant’s criminal history;
  • Ignore arrests; only consider convictions;
  • Do not take into account convictions that have been expunged;
  • Consider the nature of the crime; and
  • Consider how long ago the crime occurred.

Finally, if the conviction is the primary reason you will not offer an applicant the job, provide them with an opportunity to explain why they should not be excluded from consideration.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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