On October 20, 2010, the Equal Employment Opportunity Commission (“EEOC”) continued its push to vastly curtail employers’ use of background checks to screen applicants.
The push is part of the EEOC’s E-RACE Initiative (Eradicating Racism and Colorism from Employment), which is designed to develop “investigative and litigation strategies” with respect to employers’ use of criminal background checks and credit checks.
The EEOC has long taken the position that an employer’s policy or practice of excluding individuals from employment because they have criminal conviction records is unlawful under Title VII unless the policy or practice is justified by a business necessity.
In fact, last year the EEOC brought suit against Freeman Companies, EEOC v. Freeman Cos., No. 09-CV-02573 D. Md., alleging that its use of credit histories and criminal background checks unlawfully discriminates against “a class of black, Hispanic and male job applicants.”
Current Law
Currently, there is no federal law directly addressing employment discrimination against those with criminal backgrounds. Nevertheless, the EEOC believes that, in general, the use of criminal background checks for screening applicants has a disparate impact on African-American and Hispanic applicants.
Because criminal background checks often have a disparate impact on African-Americans and Hispanics, using the results of a check could violate Title VII if the employer can not demonstrate that the criminal background check is job-related and consistent with business necessity. According to the EEOC, an employer making an employment decision based on a criminal conviction must consider the following three factors to meet this burden: (1) the nature and gravity of the offense(s), (2) the time that has passed since the conviction and/or completion of the sentence, and (3) the nature of the job held or sought.
State Law
Minnesota has no law prohibiting employment decisions based on criminal background checks. However, the Minnesota Department of Human Rights cautions that “an employer’s hiring policy may be held to be discriminatory when, absent a bona fide occupational qualification, a minority-group member’s criminal conviction record is an absolute bar to employment.”
Unlike Minnesota, Wisconsin has a law addressing an employer’s use of criminal background checks. Specifically, Wis. Stat. § 111.335 prohibits an employer from refusing to hire an individual on the basis of an arrest or conviction record, unless the charge is “substantially job-related.”
Bottom Line
For most employers, especially those in the health care industry, criminal background checks are a routine part of the application procedure. Nevertheless, employers should adhere to the following guidelines:
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Adverse-employment decisions should be based only on recent, job-related convictions.
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The criminal background check policy should be “individualized” and not contain bright-line conviction rules. A wide variety of factors should be considered, including the nature of the offense, the nature of the job for which the applicant has applied, and the length of time that has passed since the conviction.
Given the EEOC’s position, employers should also consider reviewing their policy with respect to criminal background checks to determine whether it has an adverse impact on African-Americans and Hispanics, and if so, how to address it.