The war continues over the use of criminal background checks in the hiring process and employers are caught in the middle. A brief history here may be helpful.

In April of 2012 the EEOC published its Enforcement Guidance on Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964. Although the Guidance is not binding on Employers it unequivocally declared the direction the EEOC was taking in investigating Employers who were allegedly illegally using criminal history in employment decisions and recommended that Employers refrain from asking about criminal convictions on job applications.  The underpinning for this Guidance is the premise that there is substantial data to support the conclusion that criminal record exclusions have a disparate impact on minorities.  The Guidance also came on the heels of the EEOC’s multimillion dollar settlement with Pepsi in a hiring discrimination case concerning the use of criminal background checks.

While the Guidance did not lay out any rule prohibiting an employer’s right to consider recent criminal records or any particular criminal offenses, it did definitively assert that employers should apply an “individualized assessment” and evaluate the criminal history of applicants by considering the following factors:

(1) the nature and gravity of the offense or offenses;
(2) how much time has passed since conviction or completion of sentence; and
(3) the nature of the job held or sought.

Since announcement of the Guidance in 2012, the EEOC has continued to declare that issues concerning employers’ use of criminal background checks are one of the agency’s current top priorities.

The EEOC’s position has certainly not drawn wholehearted endorsement from Employer organizations or State and Local Officials. In July of 2013, nine State Attorney Generals fired back at the EEOC by sending a joint letter to the Commissioners of the EEOC rebuking the EEOC for its position and tactics in investigating and suing numerous employers over this position. In its letter, the State Officials called the lawsuits and the EEOC’s application of the law “misguided and a quintessential example of gross federal overreach.”  In November of 2013 the State of Texas sued the EEOC seeking to enjoin the enforcement of this Guidance which Texas calls the “Felon Hiring Rule.”  Somewhat surprisingly the EEOC has answered that suit by moving to dismiss it on multiple grounds including an assertion that the Court has no subject matter jurisdiction because the EEOC’s 2012 Guidance is not legally binding, does not constitute final Agency action, and Texas has no standing to pursue its claims. Texas has fired back by arguing that the EEOC has urged Courts to defer to a Guidance it now asserts “is not worth the paper it’s printed on.”

The conundrum over how employers should approach this issue is even more complicated than that though, because there are other state and local governments who are mandating the “ban the box” alternative or addressing the subject with other alternatives. Currently at least four states (Hawaii, Massachusetts, Minnesota, and Rhode Island)  have enacted statutes limiting private employers from asking about arrest and/or conviction records on their employment applications. A number of other states have adopted statewide regulations or laws banning the box for job applicants in the public sector. Local governments are also getting into the act. For example, the cities of San Francisco and Baltimore have promulgated “ban the box” ordinances for private employers. These laws pose traps for employers that ask questions about criminal convictions on their employment applications and are hiring employees in multiple jurisdictions.

Alternatively, Georgia has passed legislation effective July 1, 2014, that may limit the liability of employers who hire workers with a criminal background. The law will create a program and treatment completion certificate that prisoners can earn during incarceration. An employer that hires a certificate holder after the person leaves prison will be able to claim a “presumption of due care” if faced with a lawsuit for negligent hiring if, for example, the employee later commits a crime against a co-worker or customer of the company.

Employers would be well served to carefully consider how to address their approach to seeking pre-hiring information about arrest and/or conviction records. This is an extremely fluid area and one that is likely to pose continuing restrictions on employers.