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.
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EEOC Files Suit Against Two Employers for Improper Use of Criminal Background Check Information

The EEOC alleges that BMW’s policy of denying employment based on certain criminal convictions regardless of time elapsed amounts to a “blanket exclusion without any individualized assessment of the nature and gravity of the crimes, the ages of the convictions, or the nature of the claimants’ respective positions.”  In the suit filed against Dollar General. the EEOC claims disparate impact and an allegation of an applicant not being provided the opportunity to dispute the result of her background check, which, she claims erroneously labeled her a convicted felon.

EEOC Releases Important Guidance on the Use of Criminal Records for Employment Purposes

On April 25, 2012 The Equal Employment Opportunity Commission (EEOC) released its Enforcement Guidance Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights act of 1964,with the purpose shoring up the EEOC’s efforts against discrimination in the workplace based on disparate impact against persons with criminal history records.

All employers who utilize criminal records information to make employment decisions are strongly urged to review the EEOC’s guidance document and accompanying analysis, which provide the details about specific requirements employers must follow.

The Guideline addresses the use of arrests in particular and pending case record information, and strongly discourages employers from asking on employment applications if an individual has ever been arrested and/or convicted of a crime; a legislative trend in labor law also known as the “Ban the Box” initiative.

The EEOC strongly rejected, on the basis of disparate impact on protected classes, employer policies that include blanket denial of employment for specific crimes, with some exceptions, including instances when the nature of the crime has a direct nexus to the position sought or when the licensing requirements for specific professions preclude certain types of crimes.

The Guideline further develops the existing Title VII provisions to be applied by employers when making a hiring decision on persons with existing criminal records –

  1. Nature and gravity of the offense. Further defined by indicating that employers must take into account the harm caused by the offense, the legal elements of the crime, and the offense classification (misdemeanor or felony).
  2. Time elapsed since the conviction and/or completion of the sentence. Further defined by indicating that employers must look at the facts and circumstances of the offense and evaluate possible recidivism.
  3. Nature of the job held or sought. Further defined by indicating that employers must go beyond looking at the job title and examine specific job duties, functions, and environment in which the individual will function.

The Guideline expands on the EEOC’s expectation of employer-driven individualized assessment of prospect employees with criminal records, which include eight (8) specific determining factors, and provides a “Best Practices” section for employers to follow in the hiring process of persons with criminal conviction records.

While this guidance places a significant burden on employers to objectively analyze and assess the risk of an individual with a criminal record, the silver lining is it provides employers and employee screening companies like A-Check a clearer path to follow in the acceptable use of criminal records for employment purposes while maintaining compliance with Title VII requirements.

Please note that while we are giving you a bird’s eye overview of the new Guidance, these and several other provisions reinforced and implemented through the April 25th EEOC release are complex in nature and should be looked at closely by employers; furthermore, we strongly encourage you to seek the advice of legal counsel.

Following are preliminary resources on the subject matter that will assist you in getting up to speed with the EEOC’s new Enforcement Guidance.

View the Complete Guidance Document:
Enforcement Guidance on Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964

View an analysis by Labor Law Experts at Seyfarth Shaw LLP:
How Should Employers Use Criminal History in Employment Now That The EEOC Has Issued Enforcement Guidance?