EEOC Stands Firm on Criminal Background Checks Despite Concerns by States

Authors: Beth P. Zoller and David B. Weisenfeld, XpertHR Legal Editors

October 3, 2013

The Equal Employment Opportunity Commission recently responded to a letter from state attorneys general urging the EEOC to reconsider aspects of its 2012 Enforcement Guidance on the use of arrest and conviction records by employers.

In response, the EEOC reiterated its position that while it is not illegal for employers to conduct criminal background checks, the use of such background checks based on arrest and conviction records could have a disparate impact on minority groups resulting in discrimination under Title VII of the Civil Rights Act.

The EEOC explicitly stated that it did not intend to require individualized assessment of all applicants and employees in all cases, but instead encouraged a two-step process. The first step of the process is a targeted screen of all criminal records considering:

• The nature of the crime;
• The time elapsed since the crime was committed; and
• The nature of the job.

The agency explained that this individualized assessment will serve as a safety net for employers to make sure they are not "mistakenly screening out qualified applicants or employees based on incorrect, incomplete or irrelevant information." Further it will give individuals an opportunity to correct any errors or mistakes in their records.

The EEOC stated that conducting an individual assessment only for those individuals who are eliminated during the targeted screen will not result in a significant cost for employers. The EEOC also explained that an individualized assessment may serve as a safeguard and assist employers in avoiding legal liability when an employer cannot demonstrate that using only its targeted screen would always be job-related and consistent with business necessity.

In addition, the EEOC responded to the concerns of the state attorneys general that the agency's guidance seeks to override state and local hiring laws that impose bright-line criminal background restrictions that are not narrowly tailored. The EEOC reiterated that the guidance itself does not supersede any state or local laws, but only does so to the extent that a state or local law is in conflict with Title VII and inconsistent with federal law.

The agency's response comes on the heels of a recent federal court decision rejecting the EEOC's claim that an employer had engaged in hiring discrimination by improperly using criminal and credit background checks, which had a disparate impact on African-American and Hispanic male applicants. In its decision, the court issued a harsh warning to the EEOC that its commitment to challenging background check processes and suing employers for hiring discrimination essentially forces employers to ignore criminal history and credit backgrounds, which may cause them to be exposed to potential liability from criminal and fraudulent acts committed by employees while at the same time exposing them to "the wrath of the EEOC for having utilized information deemed fundamental by most employers."