The EEOC has taken on – with great vigor – the issue of using credit and criminal background checks in pre-employment screening. Their stance, as you can imagine, is that these checks are discriminatory and should be discontinued.
To really understand their stance, we can look to a case the EEOC filed in October of 2009, in the District of Maryland against Freeman, a national event planning company. The suit alleges ongoing practices of discriminatory hiring which violate Title VII of the Civil Rights Act, noting that Freeman’s practice of using an applicant’s criminal history in hiring decisions has a negative impact on African-American applicants. The EEOC further alleges that using information regarding criminal and credit histories in hiring decisions has a disparate impact on African-American, Hispanic and male applicants. As a point of reference, Title VII is the main federal law that prohibits employers from discriminating against employees or applicants based on race, color, religion, sex, or national origin. In addition to banning more obvious acts of discrimination, Title VII prohibits the use of hiring criteria that have a disparate impact on applicants who are members of a protected class.
In the Freeman case, the EEOC is asking the court to prohibit Freeman from using credit histories and criminal records in their hiring process. The agency is also seeking injunctive relief, lost wages and benefits for applicants and deterred applicants, as well as reinstatement.
This lawsuit is a reminder to employers who perform background checks to periodically review their criteria. For instance—companies who have a bright-line policy against hiring applicants with a criminal record, without regard to whether the conviction is job-related, how serious and long ago it was, and if there is any evidence of rehabilitation, will likely find they have to change their practices to come in line with EEOC guidelines. In the Freeman case, the EEOC did not contend that Freeman intentionally discriminated against minorities and men, but argued that the use of the screening criteria was not required for the types of jobs being filled.
What does all of this mean to you? Simply put, if a background report shows that an applicant was found guilty or convicted of a crime, he or she cannot automatically be eliminated from consideration for employment. The EEOC does permit employers to use convictions on the basis of sufficient and valid “business necessity” that can be justified if the conduct that led to the conviction is particularly egregious or related to the position applied for. Business necessity can be determined by the following factors:
- Nature and gravity of the offense
- Time elapsed since the conviction and/or completion of the sentence
- Nature of the position
The EEOC allows the conviction record to be a bar to employment if examination of the above factors reveals the applicant to be unsuitable for the position. Numerous courts have adopted this same position. Also, keep in mind that federal and state requirements may contradict each other. A federal law may allow the use of certain information, while a state law bars it altogether.
What to do? In order to keep your company compliant, employers must closely review their hiring processes and the standards they use regarding credit and criminal records when making hiring decisions. It is also important to periodically review how your state guidelines differ from the federal guidelines and be prepared to come in line with the more stringent of the two.
For more information on the EEOC’s Guidance on when employers can use arrest and conviction records as part of their pre employment criteria, visit http://www.eeoc.gov/policy/docs/arrest_records.html.