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July 2012 | See all news in this issue

Criminal background checks in hiring…

If you check a job applicant’s criminal record during the hiring process, be careful how you use that information. The U.S. Equal Employment Opportunity Commission (EEOC) has updated its guidelines to make clear that a blanket policy on hiring anyone with a criminal record is a potential violation of federal law.

The new EEOC guidelines are built on the "disparate impact" that criminal background checks have on workers of color, who are protected against employment discrimination by Title VII of the Civil Rights Act of 1964. This disparate impact analysis was recognized by the U.S. Supreme Court case in 1971 and upheld in amendments to Title VII signed by Presidents Nixon and Bush in 1972 and 1991, respectively.

The EEOC says that records of arrests and convictions must be evaluated differently. The EEOC advises that a blanket ban on hiring an individual based solely on his/her arrest record violates Title VII because an arrest does not establish criminal conduct occurred. By contrast, a conviction record will usually serve as sufficient evidence that a person engaged in particular conduct.

In addition, the EEOC said that it is unlawful for an employer to treat individuals with similar criminal records differently based on factors such as race or color. But even a “neutral policy” against hiring all individuals who have criminal arrests violates Title VII if it can be shown to have a disparate impact on applicants of a particular race or national origin, unless the employer can demonstrate that its policy is "job-related and consistent with business necessity."

The EEOC also listed four factors used to determine whether an employer's hiring policies relating to criminal background checks violate the law: (1) convictions as opposed to arrests; (2) nature and gravity of the offense or conduct; (3) time that has passed since the offense; and (4) the nature of the job held or sought.

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