The EEOC and Employer Background Check Policies

Many employers inquire about job candidates’ criminal history and reporting criminal history on a job application seems commonplace to many job applicants. But now, the Equal Employment Opportunity Commission is taking a look at employers’ decisions related to hiring (or not hiring) applicants based on the criminal history information gathered.

In recent cases filed by the EEOC, companies’ criminal conviction policies are being scrutinized for their discriminatory affect.  The article, “Gray Areas Remain on Background Checks Under EEOC Guidance, Speakers at ABA Say”,  found onBloomberg BNA discusses recent changes to EEOC’s position on employer background checks. In April 2012, the EEOC developed and issued a guidance relating to the Equal Employment Opportunities Act that specifically discussed criminal background checks.  The article cites  the EEOC’s intent to prevent discrimination based on how the information is used as a reason for developing the 2012 guidance. Because criminal history information is more easily accessed by employers today, the EEOC wanted to guide employers on how they should be using such information.

The EEOC guidance calls for a “targeted screen” combining three factors: (1) consideration of the severity of the offense, (2) the time since conviction or sentence served, and (3) the nature of the job at issue, as well as an “individualized assessment”. As stated in the article, an individualized assessment is not required in every case, such as if a day care provider received an applicant with a prior child molestation charge.

Case law in this area is still developing and gray areas exist as to how employers’ uses of background checks are going to be used.  One important development in the case law has established a “business necessity” defense when challenged with a disparate impact claim relating to hiring or termination decisions because of criminal history. The “business necessity” defense is about measuring the risks of hiring or retaining individuals with past criminal convictions.   However, feedback from employers establishes that companies feel as though they are being challenged by the EEOC to spend money and take publicity hits so that case law can be developed regarding the “business necessity” defense.

It is unclear how the case law will develop in regard to individual hiring decisions based on criminal convictions. It is clear however, that the EEOC intends for its targeted screen factors and, if necessary, the individual assessment, to be the procedures employers should take when reviewing criminal history. For some, this means that a review of hiring policy may be required. Whenever you consider a change in company policy we recommend discussing changes with corporate counsel. Our firm is happy to sit down and discuss specific considerations relative to your company policies and desired changes.  At The Law Offices of Kevin J. McDonough, P.C., we pride ourselves on offering proactive representation to our corporate clients. We hope to assist our clients so that they may also be proactive in operating their businesses and avoiding conflict. Contact us today at info@kjmfirm.com or (770) 406-8060.