Guidance for Criminal Background Checks

By Kirby G. Mason

For Business in Savannah

The U.S. Equal Employment Opportunity Commission (EEOC) has issued new recommendations for employers who use criminal background checks and records to make hiring and other employment decisions.

Employers frequently request criminal background checks on job candidates, but studies have shown that when criminal records are used to disqualify job applicants, such disqualification has a greater impact on minority applicants and employees. The EEOC has acted in response to what it views as the mishandling or misinterpretation of criminal records in employment decisions.

Constructed on longstanding court decisions and existing EEOC documents issued more than 20 years ago, the new recommendations focus on ending employment discrimination based on race and national origin, differentiate between arrest and conviction records, and discuss disparate treatment based on race and national origin.

The EEOC uses four factors to determine whether using criminal records to make employment decisions violates the law: whether or not the employer differentiated between convictions as opposed to arrests; the nature and gravity of the offense or conduct; elapsed time since the offense; and the nature of the job held or sought.

According to the EEOC’s guidance, inquiries about an individual’s criminal background should be job-related for the position in question and consistent with “business necessity” as defined by the EEOC. Thebusiness necessity standard will depend on the particular facts and circumstances of each job in question.

Here are some important tips to keep in mind:

● An arrest does not establish that criminal conduct has occurred. Accordingly, an exclusion based on an arrest alone is not job-related or consistent with business necessity.
● An employer may make an employment decision based on the conduct underlying an arrest if the conduct makes the individual unfit for the position in question.
● A conviction record will usually serve as sufficient evidence that a person engaged in particular illegal conduct. However, in certain circumstances, an employer may have reason not to rely on the conviction record alone when making an employment decision.
● A civil rights violation may occur when an employer treats criminal history information differently for different applicants or employees, because of their race or national origin.

An employer’s background check policy may disproportionately impact minority applicants and employees and thereby violate the law. Employers should familiarize themselves with the new EEOC Enforcement Guidance to avoid violating the prohibition against employment discrimination. Somewhat paradoxically perhaps, the new guidance suggests a more individualized approach to using criminal records when making employment decisions, as contrasted with a “zero tolerance” policy that applies uniformly to any and all applicants and employees with a criminal record, regardless of the job, the type of conviction, or the date of the conviction.
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Kirby G. Mason is a partner in HunterMaclean’s Litigation Practice Group. She can be reached at kmason@huntermaclean.com or 912-236-0261.