The California Fair Employment And Housing Council Issues Proposed Regulations To Limit Consideration Of Criminal History In Employment Decisions -

Employers take great measures to avoid hiring dangerous employees—not just to avoid legal liability but, more importantly, to ensure the safety of their employees. One way to achieve this is through the use of application forms, which often ask an applicant whether he or she has been convicted of a crime. Employers also conduct criminal background checks prior to hiring new employees and sometimes before promoting or terminating a current employee. But the use of criminal history in employment decisions comes with its own legal risks, including various federal, state, and local laws that dictate that employers around the country may not freely use this criminal history when making employment decisions. On February 19, 2016, the California Fair Employment and Housing Council (CFEHC) proposed new regulations that lay out various ways in which an employer could be held liable for its use of a potential or current employee’s criminal history in making an employment-related decision. These proposed regulations do not “ban the box” for all criminal history, meaning that they do not prohibit an employer from considering any criminal history of a potential applicant. But the proposed regulations do restrict the type of criminal history and the ways in which an employer may consider criminal history in making employment-related decisions.

Background -

Employers may face potential liability when using a potential or current employee’s criminal history under Title VII of the Civil Rights Act of 1964. In 2012, the United States Equal Employment Opportunity Commission (EEOC) issued guidance detailing how an employer’s consideration of an individual’s criminal history in making an employment decision could violate prohibitions against employment discrimination under Title VII. Specifically, the EEOC detailed how an employer’s treatment of criminal history could lead to disparate treatment of or have a disparate impact on employees based on their race or national origin.