You may have seen that the EEOC recently released new guidance on how employers should use criminal background checks. Specifically, the EEOC expressed its concerns that use of background checks may, in some instances, violate Title VII of the Civil Rights Act of 1964 (“Title VII”). Let’s examine the EEOC’s position and explain why this new guidance is a particularly aggressive move.
The EEOC’s guidance shows its concern over whether employer use of criminal background checks creates a “disparate impact” on race and national origin. As you may know, employers can be liable for discrimination under a disparate impact theory when an otherwise neutral employment practice or policy has a disproportionately adverse effect on members of a protected class. The EEOC’s position is that criminal background checks might unlawfully “screen out” members of a particular race or national origin. However, there are at least three reasons why the EEOC’s position is particularly aggressive – and is troubling for employers.
The EEOC’s “Job Related” Standard is Unworkable
According to the EEOC’s guidance, an employer violates Title VII if the employer’s use of criminal background checks creates a disparate impact on a protected class, unless the employer’s actions are “job related and consistent with a business necessity.” This standard is used frequently in the disability law context, where employers must show that certain medical qualification standards are important to the employee’s job. Yet, this standard will cause obvious headaches. Ask yourself: if you rescind an offer to a candidate because of a criminal conviction for a felony drug offense, would that always be “job related and consistent with a business necessity”? What if the conviction was only a misdemeanor? Where do you draw the line? According to the EEOC, employers need to make these assessments if they are using criminal background checks to exclude job applicants and if they cannot meet this high standard of showing the lack of such a conviction is job related and consistent with business necessity, they could face trouble from the EEOC.
The EEOC is Regulating How, When, and Why Employers Consider Prior Arrests
The EEOC’s guidance distinguishes between background checks that only examine criminal convictions, versus those that also consider mere arrests for criminal conduct. According to the EEOC, an applicant’s arrest, standing alone, should not be used to deny an employment opportunity. Why? The EEOC believes that the conduct underlying the arrest should be the relevant concern. Yet, this distinction is simply not meaningful. Suppose a job applicant was arrested for first degree murder five years ago. However, the applicant was ultimately acquitted because he acted in self defense. Can the employer deny a position to this applicant? The EEOC would say that the employer first needs to look at the conduct underlying the applicant’s arrest for murder, and then determine whether excluding the applicant would be job-related and consistent with a business necessity. That may be a prudent course of action for the employer, but it is hard to believe that Title VII would require it, which is what the EEOC is supposed to be concerned with in providing guidance.
The EEOC Did Not Seek Public Comment about its Guidance
The EEOC is required to follow a formal process (including notice of proposed rules, a public comment period, and agency response) when it issues official regulations under Title VII. Here, the EEOC has sidestepped this process by issuing informal “guidance” not covered by the formal rulemaking process. As a result, employers had no opportunity to present their valid and potentially insightful concerns about the EEOC’s guidance regarding background checks. If you do not agree with the guidance, you have to decide to act – at your potential peril.
So, how can employers best respond to this new guidance? Stay tuned for another blog post on this topic coming soon that will provide practical advice for employers who use criminal background checks. Until then, please drop a comment below and let us know how you feel about the EEOC’s new guidance on criminal background checks.