On April 25, 2012, the Equal Employment Opportunity Commission (EEOC) issued new guidance relating to criminal background checks by employers. The guidance updates, consolidates, and supersedes the Commission’s prior policy statements on the issue and is designed to be used as a resource for employers and employees alike.

Although having a criminal record is not listed as a protected basis in Title VII, an employer’s use of an individual’s criminal history in making employment decisions may, in some instances, violate the prohibition against employment discrimination under Title VII of the Civil Rights Act of 1964, as amended, which prohibits employment discrimination based on race, color, religion, sex, or national origin. Whether a covered employer’s reliance on a criminal record to deny employment violates Title VII depends on whether it is part of a claim of employment discrimination based on race, color, religion, sex, or national origin. Because of the increase in incarceration rates, particularly among African American and Hispanic men, the EEOC’s guidance is designed to provide a guide as to what type of decisions based on criminal background checks may violate Title VII by discriminating on the basis of race or national origin.

The guidance focuses on two types of analysis under Title VII – disparate impact and disparate treatment. Based on the new guidance, a disparate treatment violation may occur when an employer treats criminal history information differently for different applicants or employees, based on their race or national origin. For example, there is disparate treatment when an employer rejects an African American applicant based on his criminal record but hires a White applicant with a comparable criminal record.

Under a disparate impact theory, an employer’s neutral policy (e.g., excluding applicants from employment based on certain criminal conduct) may disproportionately impact some individuals protected under Title VII, and may violate the law. The guidance explains the disparate impact analysis and the types of data that should be used to determine whether a particular policy disparately impacts a particular group in a way that violates Title VII based on race or national origin.

In order to avoid liability under the disparate impact theory, the employer must show that exclusions based on criminal conduct are “job related and consistent with business necessity.” In order to prove that the exclusion is job related and consistent with business necessity under the new guidance, the employer must prove that it considered the following when making the decision not to hire the applicant:

1. What was the seriousness of the offense?
2. How close in time was the offense?
3. How does it affect the jobs applied for by the applicant?
4. Can the applicant who is excluded show why he should not be excluded?

If the employer demonstrates that the above factors were considered in screening an applicant under a neutral policy which resulted in a decision not to hire the applicant, the employer has met its burden under the disparate impact theory and is not liable. The full text of the EEOC’s new guidance is available at: https://www.eeoc.gov/laws/guidance/arrest_conviction.cfm

The new guidance acknowledges that the number of working-aged individuals with criminal records in the population significantly increased over the last 20 years, especially in the African American and Hispanic communities. At a time when unemployment rates continue to rise and jobs become more and more difficult to find, it’s important for individuals with criminal records to be aware of their rights and the types of decisions that can and cannot be made based on criminal background checks. If you or someone you know believes they have been discriminated against on the basis of race, national origin, or other protected class status, contact Hawks Quindel, S.C. to schedule a consultation.

Summer Murshid

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