Employer Use of Criminal Background Checks and Credit Reports in Hiring Faces Heightened Scrutiny by EEOC


The Equal Employment Opportunity Commission ("EEOC") has intensified its oversight of facially neutral employment criteria that may have a disparate impact on protected classes such as racial minorities and women. The EEOC's recent initiatives including its "Eradicating Racism and Colorism from Employment" Initiative ("E-RACE," launched in 2007), commission meetings and litigation have focused on eradicating what the EEOC views as more covert forms of discrimination, such as policies that exclude applicants with bad credit reports or criminal convictions. In light of the EEOC's initiatives, employers who conduct credit or criminal background checks should make sure that their practices do not give rise to claims of "disparate impact" discrimination by members of protected classes.

EEOC Renews Focus on Criminal Background Checks

EEOC's policy guidances provide that a blanket exclusion of individuals from employment due to a criminal record violates Title VII of the Civil Rights Act of 1964, unless the policy is consistent with business necessity or otherwise required by law. The EEOC has previously found that employment decisions based on such criteria disproportionately exclude African-American and Hispanic individuals. For this reason, the EEOC's guidance has also stated that employers should not consider arrests, but only convictions.

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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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