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

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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.

Scott West

Scott serves as the face and guiding force of Pathfinder LL&D Insurance Group. He leads strategic discussions, liaisons with our major insurance partners, and leads our sales team. He specializes in complex business risks, foreign exposures, professional liability, and executive insurance coverage. After graduating from Trinity University in 1978, Scott began his career in sales. He received a Commercial Insurance Counselor designation in 1987. He served as President of the Independent Insurance Agents of Houston from 2006-2007, and currently represents the IIAT as an advocate for responsible insurance legislation in Washington D.C. He also serves on the board of Preferred Bank. Scott is very active in our industry. He has served on numerous advisory committees, including board positions, for both local and national insurance companies. He regularly meets with television and radio reporters to give an expert opinion on developments in the industry, especially those that affect people who live and work in Texas. Despite his dedication to Pathfinder, Scott will take every opportunity to spend time with his family at his ranch in Fayetteville, Texas.

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