EEOC Restricts Employer Use of Criminal Background Checks

The U.S. Equal Employment Opportunity Commission (EEOC) issued updated regulations restricting an employer’s use of arrest and conviction records in employment decisions under Title VII of the Civil Rights Act of 1964.  These regulations indicate that an employer’s use of an individual’s criminal history in making employment decisions may, in some instances, violate the prohibition against employment discrimination under Title VII.

Under the new regulations, an employer may be prohibited from treating criminal history information differently for different applicants or employees, based on their race, national origin or other federally protected category (referred to as “disparate treatment” liability).  Examples of an employer’s “disparate treatment” include rejecting an African American applicant based on his criminal record but hiring a similarly situated white applicant with a comparable criminal record, or rejecting a job applicant based on racial or ethnic stereotypes about criminality, rather than qualifications and suitability for the position.

Even if the employer does not intend its exclusion of applicants based on certain criminal conduct to target protected categories, the employer’s policy may still violate the law if it disproportionately impact some individuals of a certain race or national origin, where the exclusion is not “job related and consistent with business necessity” (referred to as “disparate impact” liability).  Examples of “disparate impact” include a neutral criminal record screening policy or practice that has the effect of disproportionately screening out a particular race, where the employer fails to demonstrate that the policy or practice is “job related for the position in question and consistent with business necessity.”

An employer’s rejection of an application based solely on an arrest, in itself, is prohibited because the arrest is not “job related and consistent with business necessity.”  Although an arrest record standing alone may not be used to deny an employment opportunity, an employer may make an employment decision based on the conduct underlying the arrest if the conduct makes the individual unfit for the position in question.  The conduct, not the arrest, is relevant for employment purposes.

The regulations reflect the rising rate of former incarceration among the adult American job pool, particularly for African American and Hispanic men.  The regulations clarify that Title VII preempts state and local laws or regulations that require or permit acts that are prohibited under Title VII.

The regulations include an exception covering applicants for jobs as security screeners, federal law enforcement officers, child care workers in federal agencies or facilities, bank employees, and port workers, among other positions, or eligibility for occupational licenses and registrations in the transportation industry, the financial industry, and import/export activities, among others.

Although the new regulations do not prohibit an employer’s acquisition of criminal history information, another federal law, the Fair Credit Reporting Act, does establish several procedures for employers to follow when they obtain criminal history information from third-party consumer reporting agencies.  In addition, some state laws provide protections to individuals related to criminal history inquiries by employers.  

Russell Naymark

Legal Developments