• Text Size
  • Print
  • Email

    From:

    To:

Top Stories

EEOC's criminal background check policy under fire

February 03, 2014 posted by Steve Brownstein

Race discrimination, federal administrative power, state law, and the right of a private company to choose its employees are colliding in a battle being fought in Congress, our courts of law, and the court of public opinion.

The federal Equal Employment Opportunity Commission (EEOC) is trying to curtail private companies’ use of criminal background checks on job applicants, claiming this application metric violates Title VII of the Civil Rights Act. On April 25, 2012, the EEOC issued new guidance, recommending “individualized assessment” of each applicant, and identifying a “business necessity” for denying employment to an applicant with a criminal history.

But in the past several weeks, the EEOC’s efforts have met a string of defeats and challenges. Federal courts are not falling in line with the EEOC’s contention that a company’s use of criminal background checks in assessing applicants necessarily results in discrimination against African American males, simply because the group experiences a statistically higher rate of criminal convictions than Caucasians

The EEOC brought such a disparate impact discrimination claim, based on criminal background checks, against a Dallas-based marketing company, Freeman, in 2009. Recently, the federal district court for the District of Maryland took issue with the EEOC’s correlation of background checks with race discrimination. On Aug. 9, 2013, the court wrote, “Indeed, the higher incarceration rate might cause one to fear that any use of criminal history information would be in violation of Title VII. However, this is simply not the case. Careful and appropriate use of criminal history information is an important, and in many cases essential, part of the employment process of employers throughout the United States.”

In Freeman, the EEOC claimed the company discriminated against black applicants over the previous eight years by subjecting them to criminal background and credit history checks. In response, the company argued that the EEOC’s statistical data was unreliable, and insufficient to show disparate impact. Freeman also noted that the EEOC itself conducts criminal and credit background checks for most of its job applicants.

In granting summary judgment in favor of Freeman, the court agreed that the EEOC’s statistical data was unreliable and insufficient to show disparate impact.

Other challenges to the EEOC’s crusade point out that its position contradicts state and local laws that prohibit employers from hiring persons with a criminal record for certain jobs. For example, on Nov. 4, 2013, Texas sued the EEOC in the federal district court for the Northern District of Texas, arguing that state law prevents people who commit certain crimes from working in law enforcement, education, elderly and disabled care, juvenile justice, and other public service fields.

In its complaint, Texas alleged that “[i]f state agencies choose to comply with the EEOC’s interpretation, they not only violate state law, but also must rewrite their hiring policies at taxpayer expense…And it could expose state entities to liability for employee misconduct.”

In July 2013, the attorneys general for Alabama, Colorado, Georgia, Kansas, Montana, Nebraska, South Carolina, Utah, and West Virginia sent the EEOC a letter objecting to its position and guidance on criminal background checks.

EEOC Chair Jacqueline A. Berrien responded that the agency’s guidance “does not urge or require individualized assessments of all applicants and employees.” Instead, the guidance encourages a two-step process, which begins with a “targeted” screen of applicants’ criminal records. According to Berrien, a targeted screen “at least” considers the nature of the crime, the time elapsed since the crime, and the nature of job applied for. Once an employer conducts a targeted screen, then the agency’s guidance encourages individualized assessment for applicants who are screened out.

Berrien wrote: “Title VII thus does not necessarily require individualized assessment in all circumstances; however, the use of individualized assessments can help employers avoid Title VII liability by allowing them to consider more complete information on individual applicants or employees, as part of a policy that is job related and consistent with business necessity.”

In addition to legal challenges in federal court and objections from the states, the EEOC position has also been debated in recent congressional hearings. During a Nov. 19, 2013, hearing, Commissioner Peter N. Kirsanow from the United States Commission On Civil Rights challenged the EEOC’s most basic presumption: that criminal background checks necessarily discriminate.

“[S]erious social science studies have shown that the use of criminal background checks in hiring actually increases the employment of African-American men overall because employers overestimate the number of African-American men with criminal records,” he wrote in his prepared statement.

While the EEOC’s position on criminal background checks and disparate impact discrimination has suffered a string of setbacks in recent months, employers should continue to proceed cautiously in their hiring practices. The EEOC ignores the potential liabilities that employers face for hiring employees with criminal records. Employers should develop a comprehensive background check policy that weighs business necessity versus possible discrimination claims.

by Todd Fredrickson


CrimeFX performs criminal record searches in Puerto Rico

rightside one