Civil Rights Commission criticizes EEOC Background Check Guidance

The U.S. Commission on Civil Rights (USCCR) released a 355-page report in February that assesses and criticizes the effectiveness of the Equal Employment Opportunity Commission’s April 2012 guidance document instructing companies on the use of criminal background checks in the hiring process.

The USCCR report includes summary of testimony at a December 2012 hearing and the public comments of approximately 300 individuals on the EEOC guidelines’ impact, including employers and ex-offenders, as well as the commission’s analysis.

The USCCR’s commissioners take the guidance to task for the burdens placed on employers and for its failure to improve the employment prospects of the most adversely affected groups, particularly African-American men who are more likely to be hired by employers that do conduct background checks than those who do not.

“The foundation of the Guidance is flawed, because it misapplies disparate impact theory by failing to appropriately compare non-offenders to offenders, and by conflating arrestees with convicts,” three commissioners write in a statement. “The Guidance is too difficult for a layperson to effectively apply to their hiring process, and the individualized assessment reintroduces the prospect of disparate treatment into the hiring process.”

The fear of EEOC investigation and potentially costly lawsuits, the commissioners argue, could actually discourage employers from performing criminal checks at all when they have a legitimate business need to do so.

“[T]he EEOC’s guidelines for judicious use of criminal history in hiring are so opaque and nebulous that it is very difficult for employers to be sure that they are following the rules.

If they obtain a criminal background check on an applicant, they are immediately on the defensive if the EEOC decides to open an investigation,” they write.

The report, though critical, does not exempt employers from any of the EEOC’s requirements.

Learn more:

  • The EEOC has come under fire from Courts, State Attorney Generals, and even the entire State of Texas because of its Guidance Document regarding use of criminal background checks for hiring purposes.
  • For a summary of the report and what it could mean for employers, please see this article from attorneys at employment law specialist Seyfarth Shaw.

Learn more:

2012 EEOC Guidance Document Details

EEOC v. Freeman

EEOC v. Kaplan

EEOC v. Peoplemark

Download USCCR Report – (355 pages – 40 MB)

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