Two years after the EEOC adopted its criminal background check guidance, confusion still remains for employers attempting to comply with the guidance.
While it is clear that employers should not maintain bright line prohibitions against hiring any felons for all positions, the parameters of a lawful criminal background policy under Title VII remain in flux.
As commissioning a validation study regarding the hiring of individuals with criminal convictions is unlikely given practical and cost concerns, employers should attempt to implement a targeted screen analyzing the nature and gravity of offense, the time since the conviction or completion of sentence, and the nature of the position.
Prior to actually screening out an employee or applicant, the EEOC recommends that an employer should also offer that individual an opportunity to be heard, allowing the employer the ability to individually assess that person’s potential for employment.
Notably, however, the EEOC concedes that the individualized assessment is not required under Title VII where criminal offenses have a demonstrably tight nexus to the position in question.
Despite litigating four cases challenging an employer’s use of background checks over the last several years, to date the EEOC has not had much success to show for its efforts.
For example, in EEOC v. Kaplan Higher Education Corp., the Sixth Circuit Court of Appeals affirmed summary judgment in Kaplan’s favor for “using the same type of background check that the EEOC itself uses.”
While EEOC v. Freeman is currently on appeal to the Fourth Circuit, at the district court level the EEOC failed to carry its burden of supplying reliable expert testimony and statistical analysis demonstrating disparate impact stemming from a specific employment practice.
In mid-2013, the EEOC filed two additional criminal background cases, EEOC v. Dolgencorp. and EEOC v. BMW Manufacturing Co., both asserting disparate impact claims and testing the limits of whether certain “targeted screens” were targeted enough.
Significantly, state and local governments are adopting ban-the-box laws prohibiting private employers from inquiring about criminal history on employment applications. Indeed, four states and several local jurisdictions have adopted ban-the-box requirements for private employers, limiting how and when an employer can ask about an applicant’s or employee’s criminal history.
Despite these nuanced approaches on the federal and state levels, employers can take several steps to minimize risk of violating Title VII and local ban-the-box requirements.
To learn about these best practices, view our recorded webinar presented by Pam Devata and Paul Kehoe, labor and employment attorneys with Seyfarth Shaw, LLP: Avoiding a Court Date with the EEOC – Tales from Background Checking Lawsuits
On-Demand Webinar: Avoiding a Court Date with the EEOC – Tales from Background Checking Lawsuits
Attorneys from Seyfarth Shaw share best practices to keep you out of court and provide insight into the ever changing legislation.
Avoiding a Court Date with the EEOC – Tales from Background Checking Lawsuits