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EEOC Continues Its Punitive Policies on Employer Use of Pre-employment Criminal History Checks

December 16, 2019

By Michael Burns, courtesy of SBAM Approved Partner ASE

Last month the Equal Employment Opportunity Commission (EEOC) concluded six years of litigation against a national retailer by settling for a $6 million dollar judgement and requiring the employer to change some of its pre-employment screening practices.

Despite this apparent capitulation by an employer, the EEOC has experienced mixed results in its position that employers should be limited in their decisions and policies, that though logically intended to exclude high risk persons from a place of employment, may unintentionally exclude minorities because they have a criminal conviction in their past. Courts have reasonably held that the EEOC must meet a high standard to show an employer’s reasonable policies on whether it wishes to employ someone convicted of a crime is also discriminatory. But the EEOC continues to pursue enforcement against employer policies that it can statistically show might result in discrimination.

In the case at hand the employer practiced a policy of excluding applicants from employment convicted for illegal drug possession in the past 10 years. The EEOC alleged this policy unlawfully discriminated against minorities, specifically African American applicants. Though the employer settled, it maintains its pre-employment screening practices are legal and not discriminatory. None the less, the EEOC is requiring the employer to change its policies and practices. If it chooses to continue the reliance on criminal background checks it must hire a criminologist to develop new background check criteria including:

  • The time since conviction

  • The number of offenses

  • The nature and gravity of the offense(s)

  • The risk of recidivism

After the criminologist makes its recommendation on the “proper” pre-employment standards it must use, they are not allowed to change it. The settlement also restricts the employer from discouraging convicted criminals from applying, engaging in retaliation, and otherwise discriminating on the basis of race while doing the criminal background check.

Though this is a large employer, the EEOC expects this high standard of review by all employers where any allegation of discrimination is made.

What should employers do?

Criminal background checks can continue to be used by employers to screen out certain applicants. However, employers may not use different standards because of race, color, religion, sex, or national origin. Secondly even if the employer uses uniform standards, it must be on guard against a policy or practice that “disproportionately and unjustifiably excludes people of a particular race or national origin.” (EEOC Q&A About the EEOC’s Enforcement Guidance on the Consideration of Arrest and Conviction Record in Employment Decisions Under Title VII 4/25/2012)

In addition, beware of requirements under the Fair Credit Reporting Act (FCRA) as well as certain state’s laws and city ordinances that may limit or control pre-employment activities and may even have their own “job relatedness” standards to meet when employers use criminal history information. Local Ban-the-Box ordinances may apply.

As laws continue to restrict employer access to relevant information about applicants, one hears very little about extending liability protections around employers that mistakenly let a violent offender into their workplace with unfortunate consequences.

In the meantime, it is suggested employers remove “bright line” exclusionary practices. These would be policies prohibiting the hiring of any applicant with any criminal record or any felony.

Educate hiring managers and decision makers about the numerous laws and regulations that apply to the use of criminal history information.

During any pre-employment interview limit questions about criminal history that are not job related and consistent with business necessity. For a lot of smaller employers this is an unclear concept fraught with potential subjectivity that would lead to no questions at all or too broad of a standard that is so vague as to openup the employer to judicial or agency legal liabilities.

It is also advised the information about applicants’ and employee’s criminal history be kept confidential.  

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