HR Professionals Magazine August 2013


August Issue Highlights

In the Spotlight: Whitney Allen, PHR

Hot Topics

Attorneys General Ask EEOC to Rescind Criminal-Background-Check Guidance

(August 7, 2013) Attorneys general for nine states urged the EEOC to withdraw two lawsuits enforcing its position against broad blanket criminal background checks and requested that they rescind the guidance. A recent EEOC suit against BMW and Dollar General alleged that the employers’ use of bright-line criminal-background checks in the hiring process violated Title VII of the Civil Rights Act of 1964.


The two companies allegedly violated Title VII’s disparate-impact prohibition by using generally applicable criminal-background checks as bright-line screening tools. They focused on past convictions in certain categories of crime: murder, assault, reckless driving and possession of drug paraphernalia. Anyone who failed the background check was refused employment without an individualized assessment.


In its 2012 guidance, the EEOC attacked the use of criminal histories in hiring under a “disparate impact” theory. Under this theory, the EEOC must demonstrate statistical evidence that a neutral criminal background check policy disproportionately affects a protected class. If it meets its burden, an employer must prove that screening for applicants’ criminal histories is job-related and consistent with business necessity. The EEOC can succeed if it shows that the employer refuses to adopt an available alternative that serves the employer’s legitimate needs but has a lesser disproportionate effect on a protected class.

The EEOC offers employers two ways to establish that using criminal history information when hiring is “job related and consistent with business necessity.” Employers may conduct validity studies showing that prior criminal conduct is relevant to work performance or behavior. However, even the EEOC advises that making this connection is almost impossible. The EEOC also suggests that employers may develop “targeted screens” and provide an opportunity for “individualized assessment.” The EEOC acknowledges that Title VII does not require individualized assessment, but holds that without individualized assessment, the use of criminal background screens is likely to violate Title VII.


The attorneys general wrote, “Your agency contends that these policies have a disparate impact on African-American applicants because African-Americans have higher conviction rates, are not job-related or consistent with business necessity, and are therefore unlawful.” “We believe that your policy guidance—and the recently filed lawsuits—incorrectly apply the law,” they asserted. “It defies common sense to suggest that a bright-line criminal conviction screen will only rarely be ‘job-related’ and ‘consistent with business necessity.’

The attorneys general felt that employers may have any number of business-driven reasons for not wanting to hire individuals who have been convicted of rape, assault, child abuse, weapons violations or murder, which were all mentioned in the complaints. They might have concerns about the safety of their current employees and/or customers or a desire to minimize their liability. A criminal background could also be an indication of a lack of dependability, reliability or trustworthiness.


They accused the agency of gross federal overreach that further exacerbates the EEOC’s claimed preemption of state and local laws that prohibit the hiring of those with criminal records. The attorneys general feel that forcing employers to undertake more individualized assessments will add significant costs and cause employers to spend more time and money evaluating applicants that they would not have previously considered due to their criminal history. They contend that in many cases, employers are unlikely to hire even after a more thorough vetting. They also feel that more individualized assessments are likely to increase the number of discrimination suits by rejected applicants, thereby increasing employers’ litigation expenses.


The attorneys general are from West Virginia, Alabama, Colorado, Georgia, Kansas, Montana, Nebraska, Utah, and South Carolina.

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