The Equal Employment Opportunity Commission (“EEOC”) remains undeterred from its skeptical view of blanket criminal background checks during the hiring process. The EEOC’s recent response to a letter from nine state attorneys general underscored its firm stance.
The EEOC’s Enforcement Guidance issued on April 25, 2012, proclaimed that an employer’s use of prior criminal convictions as an across-the-board job screen can result in a “disparate impact” on minority applicants. As such, excluding applicants on that basis may violate Title VII if the policy is not job related and consistent with business necessity.
The attorneys general criticized the application of disparate-impact analysis to criminal history screens, accusing the agency of seeking the “illegitimate expansion of Title VII protection to former criminals.” EEOC Chair Jacqueline A. Berrien fired right back, stating that the criticism was based on a “misunderstanding” of the guidance. Berrien emphasized that it is not illegal for employers to conduct or use the results of criminal background checks. Instead, the guidance encourages a two-step process for job applicants.
The first step is a “targeted” screen of criminal records, which considers “at least the nature of the crime, the time elapsed, and the nature of the job.” After that, employers are encouraged to individually assess the applicants that were screened out by the first step. Since this would be done only for applicants flagged by the targeted screen, Berrien suggested that there would be no “significant costs” for businesses. Instead, the EEOC views the individualized assessment as a “safeguard” for an employer who otherwise may not be able to prove that its targeted screen is always job related.
The letter from the attorneys general is not the only source of criticism in this area. For instance, one federal judge in Maryland recently dismissed an EEOC lawsuit over alleged discriminatory background checks. Still, the agency is pressing on, as evidenced by lawsuits it filed this summer (as previously reported here) claiming a BMW manufacturing facility and discount retailer Dollar General applied their policies as a blanket screen that were not job related and consistent with business necessity.
In Minnesota, the “ban-the-box” law set to take effect this January means that the EEOC’s guidance likely will have minimal effect locally. That legislation bars private employers from asking about an applicant’s criminal history until after the applicant has been selected for an interview or has received a conditional offer of employment. The state banned public employers from the practice in 2009.
Bottom Line
No doubt an applicant’s criminal history is an important consideration in many jobs. However, in light of the EEOC’s current position, employers should take great care to ensure that background checks are conducted in a way that avoids blanket exclusions and uses individualized assessments of candidates whose backgrounds are flagged during the initial screening.