Criminal background checks have always been somewhat of a controversial tool for hiring decisions. The EEOC has previously issued several guidance statements calling into question employment policies that exclude any job candidate with a criminal record. On April 25, the EEOC issued a further guidance document on this subject.

We have discussed some concerns about background checks before, here and here. While recognizing that criminal background checks are not prohibited by Title VII of the Civil Rights Act, by a four to one vote, the EEOC set forth its position very clearly. Employers will violate Title VII if they intentionally discriminate among individuals with similar criminal histories (i.e. race or national origin discrimination) or if their policies have a disproportionate adverse impact based on race, national origin or some other protected status and employers are unable to demonstrate “business necessity” for utilizing an applicant’s criminal history in making a hiring decision.