Last month the Equal Employment Opportunity Commission (EEOC) voted to create new Guidance regarding employer use of criminal records under Title VII of the Civil Rights Act of 1964. Criminal background checks have become increasingly popular as a means for employers to, among other things, lessen the potentially tragic and expensive claims of failure to supervise or negligent hiring.
In the past the EEOC had at least partially disavowed criminal checks except in very limited industries because they were considered to be disproportionately negative for certain minorities.
The new EEOC guidance reiterates the four factors used to determine whether an employer’s hiring and other employment decisions and policies relating to criminal background checks violate the law:
- Convictions as opposed to arrests
- The nature and gravity of the offense or conduct
- Time that has passed since the offense
- The nature of the job held or sought.
It also provides specific examples of criminal background policies which the EEOC believes violate Title VII.
The EEOC also suggests employees who undergo criminal background checks should be told that they were denied the job because of a criminal conviction, and that there would have to be an opportunity for that applicant to demonstrate either that the screen was inaccurate or to state why they should not be denied the job. The employer would also have to review any additional information provided by the prospective employee regarding the conviction or their credentials.
There are many more details about the EEOC’s new guidance. We suggest every employer read the full guidance at http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm.