EEOC offers guidance on criminal background checks

said at a July 17 workshop. In fact, just last month the EEOC filed lawsuits against two employers alleging they violated Title VII of the Civil Rights Act by implementing and utilizing a criminal background check policy that resulted in employees being fired or screened out for employment. At the workshop, Wilburn said EEOC views the enforcement guidance on criminal background checks as a tool to eliminate barriers in recruitment and hiring for protected groups, which was a priority cited in its strategic enforcement plan adopted in December 2012 (243 DLR A-1, 12/18/12). Citing 42 U.S.C. § 2000e-2(k)(1)(A)(i), Wilburn explained that disparate impact discrimination occurs when an employer has a neutral policy or practice that disproportionately screens out or disadvantages Title VII-protected individuals, does not relate to the job in question, and is not consistent with a business necessity. This type of discrimination may arise from background checks, she said. “The criminal record policy can be neutral on its face in terms of protected groups. However, the policy will require all new hires to be conviction-free or have a clean background or no felony record. That is what you will see in these screening records policies,” Wilburn said.

Misconceptions addressed by the EEOC

Wilburn also addressed three misconceptions that have emerged in the media, especially in editorials, about the guidance. For example, she challenged the notion that the agency is restricting employers from obtaining or using criminal records to screen its applicants and employees. She stressed that the guidance does not prohibit employers from using criminal history when making employment decisions. Another inaccurate interpretation about the guidance Wilburn said she has heard is that employers are required to hire job applicants with criminal records who are unsuitable for certain jobs. She said the guidance “does not require companies to hire anyone,” but simply “advises employers how they can avoid Title VII liability if they use applicants’ or employees’ criminal records to make employment decisions.” The third misconception she cited is that the policy imposes new Title VII requirements on employers. Applying Title VII analysis to the use of criminal records in employment decisions is well-established at the commission, according to Wilburn.  ]]>