Employer’s Use of Criminal History in the Hiring Process – What Does the EEOC Say?

If you have a box on your employment application that asks if the prospective employee has ever been convicted of a felony/spent time in jail, you may want to consider removing it. The United States Equal Employment Opportunity Commission (EEOC) recently issued new enforcement guidance making clear that they will scrutinize employers’ use of arrest and conviction records in employment decisions. Because of higher incarceration rates (as a percentage of total population) for African American and Hispanic males, use of arrest records may have a disparate impact on employment in those ethnic groups. And as such, could be construed as employment discrimination under Title VII of the Civil Rights act. Use of a record of arrest/incarceration is only defensible if the employer can demonstrate that the job opening is not suitable based upon the crime, such as hiring a convicted embezzler as your accountant or a paroled pedophile as a children’s day care employee. Or a convicted murderer being hired as a deputy sheriff.

The EEOC believes that employers who use criminal background checks should develop a targeted screening that considers the type of crime, how long ago, and how it would compromise the position for the prospective employee. And that those excluded from that opening be given an opportunity for an individualized assessment to determine whether the policy as applied is job related and consistent with the business need. It requires employers to document and justify their use of the criminal history when making an employment decision.

The safest way to handle the new EEOC guidelines is to not inquire about criminal history or if that isn’t possible, seek legal counsel as to what policies need to be created around specific job requirements. Any criminal history that is used in a negative employment decision must be job related. Employment application questions should be directed to your legal counsel (who is hopefully versed in employment law). You can also purchase insurance known as Employee Practices Liability Insurance from your insurance professional to help you through an unforeseen event.