Criminal background checks and the hiring process
The practice is receiving heightened scrutiny enforcement guidance from the EEOC
Q. In the 1990s, Acme Corp. used criminal background checks as part of its job applicant screening process. If an applicant had any criminal convictions within the prior eight years, Acme would not hire that individual. Could such a policy could be used today?
A. Although criminal background checks have been used by employers for a long time, the practice is receiving heightened scrutiny following enforcement guidance issued in April 2012 by the Equal Employment Opportunity Commission, and two recent lawsuits filed by the EEOC relating to background checks.
The EEOC’s enforcement tool against criminal background checks is Title VII of the Civil Rights Act of 1964. Relevant to criminal background checks is something called disparate (i.e. different or discriminatory) impact discrimination, which bans employment practices that have a disparate effect on a protected class of individuals, such as minorities or women. A seemingly neutral policy, such as not hiring any applicants with felony convictions, can disproportionately affect Hispanic men if, for example, the policy results in 85 percent of white applicants receiving job offers and only 5 percent of Hispanic applicants receiving offers.
The employer can rebut this finding of disparate impact by demonstrating that the policy is “job related for the position in question and consistent with business necessity.”
On April 25, 2012, the EEOC issued written guidance on how it interprets the phrase “job related and consistent with business necessity.”
That guidance strongly advocated for an individualized assessment of criminal background information, rather than a blanket policy prohibiting hiring of individuals with felony convictions. The EEOC emphasized that for an employer to establish that a criminal conduct screen is job-related and consistent with business necessity, “the employer needs to show that the policy operates to effectively link specific criminal conduct, and its dangers, with the risks inherent in the duties of a particular position.”
Employers were encouraged to consider factors such as the facts and circumstances surrounding the offense, the nature and gravity of the offense, the individual’s age at the time of conviction, the time that has passed since the offense and completion of sentence, and any rehabilitation efforts.
Moreover, the EEOC distinguished between arrest records and criminal conviction records, noting that employment decisions relating to the existence of a prior arrest alone cannot be used to deny an employment opportunity.
Careful review
In June, the EEOC filed two class action lawsuits over the alleged discriminatory use of criminal background checks. Both suits were filed in federal court on behalf of purported classes of African-American workers.
In one suit, the EEOC alleges that the employer disproportionately screened out workers from jobs using a hiring policy that denied employment to workers with certain convictions dating back any number of years. The EEOC panned the policy as a blanket exclusion without any individualized assessment of the nature and gravity of the crimes, the ages of the convictions, or the nature of the claimants’ respective positions. In the second suit, the EEOC alleges that the employer conditions all of its job offers on the applicant passing a criminal background check dating back 10 years.
Though the 2012 enforcement guidance is not “the law” and does not have to be followed by courts, the EEOC appears poised to use the key points from that guidance as the basis for more investigations, audits and lawsuits targeting employers’ use of background screenings.
Employers that utilize criminal background checks should carefully review their policies and analyze the impact of such policies on the demographics of their workforces. Employers should also consider discontinuing blanket or bright-line policies, under which any applicant with a criminal conviction is prohibited from employment. (The policy described in the question posed above would likely not pass the EEOC’s scrutiny.)
While more costly and time-consuming for employers, the benefits of keeping the federal government at bay outweigh the costs of conducting individualized assessments of job applicants’ criminal background screenings.
Lastly, employers would benefit from training their recruiters or those making hiring decisions to consider the factors enumerated in the EEOC’s enforcement guidance when reviewing the results of criminal background checks.
But businesses have found an unexpected bedfellow in their efforts to combat the EEOC’s intensifying enforcement policy — state attorneys general.
On July 24, attorneys general from Alabama, Colorado, Georgia, Kansas, Montana, Nebraska, South Carolina, Utah and West Virginia sent a scathing letter to the EEOC chair and several EEOC commissioners describing the recent lawsuits as “quintessential example[s] of gross federal overreach” and asking the EEOC to dismiss the suits and take back its 2012 enforcement guidance.
While the letter is unquestionably driven by political motives and advocacy for states’ rights, it provides a potentially helpful roadmap for an employer looking to mount a defense against an EEOC lawsuit over background screening procedures or policies.
Nicholas Casolaro, an associate in the Litigation Department of McLane, Graf, Raulerson & Middleton, can be reached at 603-628-1246 or nicholas.casolaro@mclane.com.
