EEOC Weighs In on Criminal Background Checks

Jan 2012

Many employers check the qualifications and work experience of job applicants.  Many include a criminal background check as a part of this due diligence.  While it is not unlawful to conduct a criminal background check, legal issues may arise when an employer refuses to hire a person with a criminal record.

The Equal Employment Opportunity Commission (EEOC) recently released an advisory opinion letter that is an important reminder to employers about the potential legal ramifications when using criminal background checks during the hiring process. Although non-binding, the letter provides insight into the EEOC's position. Specifically, the letter reminds employers of the EEOC's position that excluding individuals from employment because of an arrest or conviction can create liability under Title VII of the Civil Rights Act, if the background check disproportionately excludes members of a protected class.

According to the EEOC, minorities are more likely to have conviction records.  A recent U.S. Justice Department report notes that there are 3,408 black male inmates for every 100,000 black males in the country.  By contrast, there are 417 white male inmates for every 100,000 white males. In New Jersey, African Americans make up about 13% of the population but are 13 times more likely as whites to serve a prison term.  As dramatic as this statistic is, New Jersey is actually below the national average when it comes to sending African Americans to prison.  However, because whites are generally less likely to go to prison in the state as compared to other states, New Jersey has the widest racial gap in the nation.  Due to this gap, the EEOC has taken the position that denying a job solely because of a prison term may constitute disparate impact discrimination.

But according to legal experts, “disparate impact discrimination” is very difficult to prove because it requires statistical proof of large numbers of applicants being screened out because of a criminal record over a long period of time. 

The EEOC's letter strongly discourages an employer's use of arrest records during the hiring process. The letter reasons that it is inappropriate for employers to use such records because individuals are innocent until proven guilty. Therefore, the EEOC states that arrest records are "unreliable indicators" that an individual is truly guilty of the alleged criminal conduct.

According to John Sarno, the president of the Employers Association of New Jersey, the EEOC lacks any reliable data about how employers use criminal backgrounds and “knows even less about what motivates hiring decisions.”

The EEOC letter is misleading, he says. “A criminal background is a nondiscriminatory reason for not hiring someone. Whether the use of such a selection criteria harms African American applicants, or anyone else, more than another group is something that the EEOC is speculating about but there is no statistical evidence, which is what is legally required to prove this type of discrimination.”

However, Sarno believes that the finer points of the law are lost on most smaller employers and that most will conclude that the use of criminal background checks are now illegal.

The EEOC concedes that employers can use criminal records to make hiring decisions. With both arrest and criminal records, the EEOC recommends "limiting the inquiry to arrests and charges for offenses that are related to the position in question." The letter also counsels employers to provide applicants with an opportunity to dispute the record's validity but this is not a requirement.

For most jobs, the EEOC states that conviction records should be cause for rejection only if their number, nature and recentness would cause the applicant to be unsuitable for the job.  According to the EEOC, if criminal background checks are done they should be accompanied by a statement to the job applicant that a conviction record will not necessarily be a bar to employment, and that factors such as age and time of the offense, seriousness and nature of the violation, and rehabilitation should be taken into account.

The EEOC is suggesting a “best practice that most employers assume is what the law requires,” says Sarno. “Ultimately, it’s the employer’s judgment call.”