African Americans and Hispanics are arrested and convicted at a rate disproportionate to their numbers in society. Consequently, if an employer uses criminal records/background checks as a screening tool and eliminates all applicants with any criminal record, the employer will break federal laws.
In April 2012, the Equal Employment Opportunity Commission (EEOC) addressed in detail how an employer can use criminal records checks in employment decisions. While the EEOC has always cautioned employers not to use such records to disqualify employment across the board, they also provided guidance on how to use criminal record check information in employment decisions without violating Title VII of the Civil Rights Act or leading to discrimination claims.
The EEOC recommends that employers use criminal background check information in a neutral manner, so as not to screen out applicants who are what they’d classify as “protected classes,” based on race and national origins. This would best be achieved by asking three questions: what is the nature and gravity of the criminal offense; how long has it been since the applicant committed the offense; and what is the relationship between the offense committed and the job’s requirements. Additionally the employer should determine if there are mitigating circumstances regarding any information provided by the criminal records check. This can be accomplished by giving the applicant an opportunity to explain and demonstrate why the information discovered in the background check should not disqualify the applicant from the job.
The EEOC recommends that employers eliminate policies that bar employment based on any criminal record regardless of context, train hiring managers about Title VII and how to apply it to a criminal records check policy, and create a policy that matches the job requirements and the offenses that potentially disqualify an applicant from a job.
Employers should also set a time limit for consideration of a criminal history as well as allow applicants to respond to it. While following this guidance from the EEOC does not guarantee a claim free future, it enables the employer to provide a reasonable defense to discrimination claims filed again it.