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New Guidance on the Use of Criminal Background Checks in Hiring

If you are an employer which uses criminal background checks as part of your decision process in deciding whether to hire an applicant, you should be aware that on April 25, 2012 the U.S. Equal Employment Opportunity Commission (EEOC) issued a new Guidance (EEOC Enforcement Guidance No. 915.002) which further clarifies under what circumstances such a practice may in fact be viewed as discriminatory.  While the use of criminal background checks to screen applicants may seem like a colorblind endeavor, the EEOC has outlined via its Guidance when that activity can have an unlawful impact on certain groups of job applicants. This finding is based upon the EEOC’s noted findings, based upon historical data, that different races are incarcerated at different rates, making a prohibition on not hiring anyone with a conviction a prohibition which is more limiting to African-American applicants as opposed to Caucasians for example.    Because of this new clarification on the potential unlawful effects criminal background checks may have, employers generally need to once again examine their hiring policies to make sure that they will not run afoul of the law even if one’s motive in conducting criminal background checks is pure.

In issuing its Guidance the EEOC has emphasized that even where criminal records exclusions are applied uniformly by an employer, the exclusions may still “disproportionately and unjustifiably” exclude people of a particular race or national origin.  To avoid them being in violation of Title VII of the Civil Rights Act of 1964 an employer should then generally not have a global prohibition as not hiring anyone with a criminal conviction. Rather a list of prohibited convictions should be prepared based upon the position, and it should be documented, as part of the hiring process, how the exclusion for hiring a person with such a conviction is related to the position being filed and “consistent with business necessity” for the position.  In this way if an applicant is excluded from a job based upon a criminal conviction it will be clear as to why that criminal conviction is prohibitive to the position being filled.  Additionally, the EEOC has emphasized that even in instances where there is a past conviction for a crime of relevance; mitigating factors should also be taken into account to avoid possible disparate treatment or impact. For instance, the age of the conviction may make it irrelevant and an inappropriate consideration.

In its Guidance the EEOC has also provided a list of best practices which are an excellent resource for setting up a policy regarding the use of criminal background checks which will not be discriminatory in its effect.   The key recommendation therein is that an employer should develop a “narrowly tailored written policy and procedure” for screening job applicants and employees.  If this policy and procedure makes distinctions based upon the job being filed and the unique requirements of each position, then the company it is more likely to be in compliance with the law.  In conclusion, if you are an employer who has not adopted a written policy as to the use of criminal background checks in the screening of job applicants, now is the time to do so.

Luke A. Wingfield is an associate with McBrayer, McGinnis, Leslie & Kirkland PLLC. Mr. Wingfield concentrates his practice in employment law, insurance defense, litigation and administrative law. He is located in the firm’s Lexington office and can be reached at lwingfield@mmlk.com or at (859) 231-8780, ext. 1265.

This article is intended as a summary of newly enacted federal law and does not constitute legal advice.

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