New Guidance on Employer’s Use of Criminal Background Checks

In 2012, the Equal Employment Opportunity Commission (EEOC) issued guidance clarifying their position on employer’s use of criminal background checks in hiring decisions.  The EEOC reports that 92% of employers in the United States require prospective employees to undergo criminal background checks.

Unfortunately, many employers don’t appreciate the potential civil liability they can be exposed to pursuant to Title VII for these practices.  Since Blacks and Hispanics are incarcerated at rates substantially higher than Whites, employers who require background checks could be liable for Disparate Impact or Treatment suits pursuant to the principles enunciated in Judicial Opinions and Title VII.  Therefore, it is of the utmost importance that employers understand the significance of properly administering criminal background checks.

When conducting the screens, the law recognizes a sharp distinction between convictions and mere arrests.  Where there is a conviction, employers will usually be justified in denying a job opportunity.  However, an arrest alone does not establish that “criminal conduct” has occurred.  Consequently, an arrest is not grounds for denial of an employment opportunity.

How Can Employers Protect Themselves?

The “Criminal Conduct Exclusion” controls these situations.  There are two ways an employer may effectively satisfy this burden and properly exclude those who have been arrested from the hiring pool.

First, an employer can “Validate its Criminal Conduct Screen.”  This is accomplished by setting forth standards that consider empirical data that indicate a connection between the alleged criminal conduct and job performance.

Second, and more prevalent, is the “Targeted Screen.”  The Targeted Screen is based on three factors.  1) the nature of the crime; 2) the time elapsed since the crime occurred; and, 3) the nature of the job in question.

Whenever one of these approaches is taken, an employer will then have to perform a three pronged back and forth with the applicant.  First, they will have to give notice to the excluded person that they were excluded because of the alleged crime.  Second, they need to give the applicant an opportunity to show why the exclusion should not be applied; and, lastly, the employer should give consideration as to the applicant’s proffered explanation as to why the exclusion should not apply.

In short, the best practice for most practitioners is to develop a uniform screen using those three factors and then give each applicant an individual assessment.

In conclusion, as technology between business and the criminal justice system becomes more intertwined, it becomes more and more tempting for prospective employers to consider issues like criminal backgrounds.  However, in light of state and federal regulations, it is important for all employers to be aware of the exact steps that they should be taking to protect themselves from civil liability.  Most employers do not even consider the potential liability from these practices, making awareness all the more crucial.