EEOC Approves New Employment Guidelines for Background Checks

By a vote of four to one the EEOC approved a new series of guidelines to the way background checks for employment screening can be applied for each job applicant.  Here is the overview provided by knowledgeable law firm, Seyfarth and Shaw…

For the complete list please click on this link to the Seyfarth and Shaw webpage.

If you are an employer, this is required reading for your hiring officers.

Overview Of The EEOC’s Guidance

The EEOC’s Guidance is aimed at employers (best practices for employers are included), as well as for use by the EEOC’s staff. Undoubtedly, the concepts within it will also impact litigation issues in cases brought by the EEOC over use of criminal background checks in the hiring process, especially the EEOC’s high profile litigation alleging systemic violations under Title VII against African-American and Hispanic applicants.

While not binding on employers, because the EEOC will be enforcing Title VII with this Guidance in mind, employers are well advised to consider adjusting their use of criminal history in accordance with it. This is especially true given that Commissioner Ishimaru stated in his remarks at the public meeting this morning that the EEOC was currently investigating hundreds of cases where employers illegally (allegedly, according to the EEOC) used criminal history in employment decisions. This comes on the heels of the EEOC’s high profile $3.13 million settlement with Pepsi earlier this year in a hiring discrimination case over the use of criminal background checks.

The Guidance starts from the premise that “national data support a finding that criminal record exclusions have a disparate impact” and has roots in EEOC’s E-RACE (Eradicating Racism and Colorism in Employment) Initiative. The Guidance also cites studies finding that criminal records are often incomplete and inaccurate. Today’s release follows two previous releases by the EEOC on the subject in 1987 and 1990 and two public meetings. See November 20, 2008 Meeting on Employment Discrimination Faced by Individuals with Arrest and Conviction Records. Most recently, on July 26, 2011, the EEOC had a meeting again revisiting the use of arrest and conviction records in employment.

What an Employer Can Ask

Taking a cue from state “ban the box” laws, the EEOC’s Guidance recommends that employers not ask about convictions on applications. If and when they are made, inquiries about convictions should be limited to those which are job-related.

Many employers currently ask about convictions in a blanket fashion or with minimal exclusions required by state laws. Per the Guidance, employers should review job applications and pre-employment inquiries based.

Arrest Records

The Guidance makes clear that use of arrest records is not job related and consistent with business necessity. The Guidance, however, states that an employer may make a decision on the underlying conduct if the conduct makes the individual unfit for a position. The Guidance does not specifically discuss how, if at all, pending records are different from arrests, except to state that a person can be placed on an unpaid administrative leave while an employer investigates the underlying facts.

Factors To Consider When Evaluating Criminal History

It is no surprise that the EEOC reinforced its earlier position that bright line policies relating to the use of criminal history will be unlawful. The good news is that the Guidance does not contain any rule specifically limiting an employer’s ability to consider recent criminal records, or only a specified list of offenses – which many thought would be contained in the Guidance. Rather, the Guidance gives more insight into the factors that were originally set forth in the February 4, 1987 EEOC Policy Statement on the Issue of Conviction Records under Title VII, as well as adding some additional factors to be considered, specifically an individualized assessment.