The EEOC recently issued another information discussion letter regarding pre-employment criminal background checks. Many employers conduct criminal background checks, and the EEOC has long-held that such screenings do not violate Title VII per se because Title VII does not regulate inquiries by employers. The discussion letter, however, reminds employers that the use of criminal records by an employer may violate Title VII if it is done in a discriminatory way.
An employer must not use criminal history information to engage in unlawful disparate treatment (e.g., excluding African American applicants with certain criminal charges while accepting white applicants with the same charges). In addition, because a disproportionate numbers of African Americans and Hispanics are convicted of crimes, the use of a criminal background check may have a disparate impact on certain groups of people. In order to limit that disparate impact, the EEOC’s position is that an employer may use criminal history information to make employment decisions only when it is job related for the position in question and consistent with business necessity. To meet this standard, a criminal conduct must be recent enough and sufficiently job-related to be predictive of performance in the position sought. The EEOC’s guidance identifies three factors to consider in making this assessment:
1. The nature and gravity of the offense or offenses;
2. The time that has passed since the conviction and/or completion of the sentence; and
3. The nature of the job held or sought.
Employers should conduct a review their policies to ensure that they take into consideration these factors. No policy should impose an absolute ban on hiring applicants with criminal convictions. The policy should allow discretion to determine the nature of the offense, the nature of the job for which the applicant has applied, and the length of time that has passed since the conviction. For example, a criminal conviction for public drunkness that happened 15 years ago may not be considered a preclusion for an individual seeking a position in the accounting department.