Title VII of the Civil Rights Act of 1964 prohibits discrimination by employers with 15 or more employees, on the basis of race, color, religion, sex, national origin, disability, or age in hiring, promoting, firing, setting wages, testing, training, apprenticeship, and all other terms and conditions of employment.

The Equal Employment Opportunity Commission (EEOC) is an independent regulatory body that enforces Title VII and other legislation, including the Age Discrimination in Employment Act, the Equal Pay Act, Title I of the Americans with Disabilities Act, Civil Rights Act of 1991, and Title IX.

Specific to Background Checks, the EEOC discourages employers from excluding applicants for employment based on conviction or arrest records that may adversely impact certain minority segments of the population, unless the employer can show business necessity. The EEOC’s actions are in response to a serious social concern that Background Checks have a disproportionate impact upon minorities and may result in unintentional discrimination unless when negative information is revealed, employers consider 1) the severity and age of the offense(s), 2) rehabilitation efforts, and 3) the relatedness of the crime. This process enables the employer to determine the business necessity of taking adverse action with the applicant/employee based solely upon found negative information. EEOC’s goal is to prevent discrimination by requiring employers to individually assess the actual business necessity of screening out applicant/employees whose background check reveals a criminal record.

On April 25, 2012, the EEOC issued “new” Guidance to employers when dealing with applicants/employees with criminal records. The EEOC wants employers to implement a pre-adverse action process similar to that of the FCRA. By this process, if a found record is in fact correct, then the employer must assess the risk that person may pose, not only using the three factors above, but also integrate review of such things as evidence of rehabilitation (ie: training, evaluation, professional help); or a good work record of employment and/or character references that demonstrate prior successful employment after a conviction. EEOC recognizes that the CRAs cannot be asked to screen out information that might result in discrimination, but as well makes clear that blanket disqualifications for anyone with a conviction record is illegal. Beyond that, what is and is not a discriminatory use of information is a topic that lawyers and even judges disagree over.

The EEOC acknowledges that not all crimes must be individually assessed, but it gives no examples – making application of EEOC guidelines difficult. For this reason, it is advisable that employers form specific policies for the use of background checks in hiring to include a “hire/do not hire” matrix that would be job/position specific, examining individual crimes, taking into account how long ago the crime was committed, and its relationship to the job. If using the matrix results in an answer: “do not hire” then the employer must provide the applicant/employee an opportunity to dispute the negative information resulting in its correction. Or if the information is correct, the applicant/employee can respond to the negative information directly by addressing the employer in an effort to mitigate the risk by way of explanation. If the explanation is not sufficient to the employer, then the candidate gets rejected based upon the matrix, and assuming the matrix itself is non-discriminatory.  This process results in EEOC compliance.

These new EEOC rules are subordinate to federal laws or regulations that disqualify an individual for a position based upon a criminal record. However, these guidelines do pre-empt any state or local law.

As an additional point of the “new” Guidance the EEOC’s expressed it’s preference that employers “ban the box” on employment applications that requests self-disclosure by the applicant of criminal records. Instead, the EEOC wants the issue of a criminal record raised only after the employer has determined the person is otherwise qualified for the job. This approach limits the disqualification of the applicants/employees to only the criminal records that the employer has already determined are relevant to the job.

In summary, EEOC policies and specifically the “new” Guidance increase EEOC and employer’s attention to the potential for legal action when employer efforts to individually assess the job relatedness of the applicants/employee criminal records to the position are insufficient. However, the EEOC itself acknowledges the difficulty in applying these rules, leaving judges and juries final discretion in deciding when employers have complied with matching crimes with jobs, or when failure to do so results in discrimination.

EEOC Dos and Donts

Background information cannot be used to discriminate against an applicant or employee. Here is a list of “dos and donts”:

  • DO – Apply the same standards to all regardless of race, national origin, color, sex, religion, disability, genetic information (including family medical history), or age (40 or older).
  • DON’T – Base employment decisions on background check negative information that may have a “disparate impact” to people of a certain race, color, national origin, sex, religion; or among people who have a disability; or are age 40 or older.
  • DO – Make exceptions if negative background check information was caused by a disability, or if it would not affect his or her ability to do the job without causing significant financial or operational difficulty or risk and present a business necessity.

To view a complete copy of the EEOC’s Guidance, visit our legal documents library.