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Paul Zimmerman
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EEOC Issues New Guidance on Criminal Background Checks

The Equal Employment Opportunity Commission (EEOC) has issued an updated enforcement guidance regarding employers’ ability to consider candidate criminal records in hiring decisions. The EEOC’s previous guidance was issued over two decades ago, when conducting criminal background checks was more difficult. The new guidance, according to the EEOC, is necessary for the electronic age.

According to the EEOC, a company that rejects all candidates with criminal records could be discriminating against certain minority groups, as some statistics suggest that certain minority groups are convicted of some crimes at a rate higher than their percentage of the overall population. The EEOC believes that such a blanket ban could result in unlawful discrimination under the “disparate impact” theory of discrimination recognized by courts under federal and state anti-discrimination law, including California law.

Under disparate impact theory, employers can be found liable for discrimination without a plaintiff having to show proof of intentional discrimination, and based on statistical evidence alone. Regardless of their opinions on whether this legal theory is just, employers must accept the reality of the potential for liability in this area.

The guidance also expresses concern over the potential for background check errors. According to the EEOC, some data suggests that background screening companies mismatch people and records, (especially people with common names), omit crucial information (for example, a person is arrested but then found innocent), reveal sealed or expunged information, provide misleading information, such as a single charge listed multiple times, and misclassify offenses, such as reporting a misdemeanor as a felony.

The EEOC recommends that employers allow applicants to explain results and discrepancies, and also recommends that employers objectively weigh the date of the offense, as well as its severity and relevance. If a candidate is denied employment based on a criminal record, the employer must show that the record directly conflicts with or introduces danger to the specific job for which the candidate was considered.
This guidance, if relied on by a court, will make it generally unlawful for an employer to implement a blanket ban on candidates with criminal records, with arguably minor exceptions in certain jobs and industries that prohibit hiring individuals with criminal records (e.g., nurses, teachers, day care providers, etc.) Under the new guidance, however, if an employer’s policy is not job related and consistent with business necessity, the fact that it was adopted to comply with state law would not shield the employer from liability.

While the guidance does not have the same legal effect as a federal statute passed by Congress, it will be relied on by federal and state courts evaluating allegations of criminal background check discrimination.

The guidance makes the following recommendations about employer best practices:

  • Eliminate policies or practices that exclude people from employment based on any criminal record;
  • Train managers, hiring officials, and decision makers about anti-discrimination laws;
  • Develop a narrowly-tailored written policy and procedure for screening applicants and employees for criminal conduct;
  • Identify essential job requirements and the actual circumstances under which the jobs are performed;
  • Determine the specific offenses that may demonstrate unfitness for performing such jobs;
  • Identify the criminal offenses based on all available evidence;
  • Determine the duration of exclusions for criminal conduct based on all available evidence;
  • Include an individualized assessment;
  • Record the justification for the policy and procedures;
  • Note and keep a record of consultations and research considered in crafting the policy and procedures;
  • Train managers, hiring officials, and decision makers on how to implement the policy and procedures consistent with anti-discrimination law;
  • When asking questions about criminal records, limit inquiries to records for which exclusion would be job related for the position in question and consistent with business necessity; and
  • Keep information about applicants’ and employees’ criminal records confidential. Only use it for the purpose for which it was intended.

Additional recommendations from Michelman & Robinson, LLP include:

  • Before rejecting a candidate based on a criminal background check, make sure that the information is accurate. Also, make sure that the information creates a danger or direct conflict with the job duties at issue;
  • Consider giving the candidate an opportunity to explain the information, making sure not to violate applicable law (for example, California law) about permitted areas of inquiry into criminal background;
  • Be willing to consider good faith efforts by the applicant to rehabilitate;
  • Consider the risks to other employees and your clients, and the obligation to maintain a safe workplace;
  • Ensure that the background check provider understands and complies with all applicable law. Both federal and California law have specific limitations on what records can be inquired about and accessed – make sure your provider is familiar with these laws; and
  • Give your provider a copy of the EEOC guidance and ask what steps they have taken to ensure that their practices are in compliance with its recommendations.

This article is not offered as, and should not be relied on as, legal advice. You should consult an attorney for advice in specific situations.