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EEOC Trains Sights on Criminal Background Checks, Cites Discrimination
By Abena Sanders
According to a survey conducted by the Society of Human Resources Management (SHRM) in 2010, more than 90% of employers use criminal background checks to screen some applicants or employees. More than 70% of employers use them to screen all applicants or employees. The EEOC took notice of this trend when implementing its E-RACE Initiative (Eradicating Racism And Colorism from Employment) several years ago. One of the goals of the initiative was to implement investigative and litigation strategies to address selection criteria and methods (such as background checks) that the EEOC believes lead to a disparate impact upon blacks and hispanics. The agency reasoned that unnecessarily broad employer policies limit job opportunities for minorities with statistically higher arrest and conviction rates than whites.
The EEOC’s increased interest in the use of criminal background checks has already claimed employer casualties. Pepsi Beverages Co. was recently forced pay $3.1 million to settle federal charges of race discrimination for using criminal background checks to screen out job applicants, some of whom were not convicted of a crime. The EEOC’s position was that Pepsi’s policy of not hiring workers with arrest records disproportionately excluded more than 300 minority applicants.
On April 25, 2012, the EEOC voted 4–1 to adopt a new guidance concerning the use of criminal background checks to screen applicants and current employees. All signs indicate that the EEOC plans to take an extremely aggressive enforcement posture and pursue systemic investigations. Over the past year there has been a noticeable uptick in EEOC charges related to criminal background check policies.
Employers must also keep in mind that many states and the federal government have legislation requiring background checks for certain positions based on legitimate concerns. While the EEOC considers an employer’s compliance with federal law to be justification for an exclusionary policy, the EEOC has made clear that state laws will not provide similar legal cover. In certain cases, this could mean that employers could be put in the difficult position of being investigated by the EEOC for following state hiring laws.
The EEOC explains in its recent guidance that an employer policy excluding all applicants or employees with any criminal history likely violates Title VII where an adverse impact can be demonstrated. As opposed to a blanket exclusion, employers should design policies to consider: 1) the nature and gravity of the arrest or conviction; 2) the time that has passed since the arrest or conviction; and 3) the type of the job held or applied for. For instance, a decades- old conviction for driving under the influence may not be considered relevant to an applicant seeking a standard clerical position.
As a best practice, an employer’s criminal background check policy should provide the opportunity for an individualized assessment of the applicant or employee. According to the EEOC, employers should consider evidence that the individual performed the same type of work after a conviction with no instances of similar offenses, character references and other information proving the candidate’s ability to be successful in the position sought, despite his or her criminal history. Employers should address their criminal background check policies in light of the new guidance and ensure that management is properly trained to implement them.
Abena Sanders is an associate in the Atlanta office of Fisher & Phillips LLP. Her practice focuses on the representation of management in employment litigation and administrative proceedings arising under state and federal anti-discrimination laws, including Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act and the Equal Pay Act. She has extensive experience defending employers before state and federal trial courts, as well as before governmental agencies such as the EEOC, NLRB and OSHA.