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Is there an acceptable policy for applicant screening for criminal background checks according to the EEOC?

By: Jason White

 

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Is there an acceptable policy for applicant screening for criminal background checks according to the EEOC?

Answer: The comments that we offer on legal topics are not based on any legal qualifications and should not be considered as anything other than general feedback. Our ability to find information that is directly responsive to legal and regulatory questions is limited to referencing documents published by the government or other sources.
As discussed in the EEOC and other labor industry information below, it is possible to develop acceptable policies and procedures for using criminal background checks in the applicant screening process without violating hiring discrimination regulations. However, due to the general complexities and legal risks, we always recommend that our members consult their business labor lawyers in order identify the federal and state labor laws applicable to their employees and businesses and to develop hiring and other personnel policies and procedures that are legally compliant.
 
 The EEOC’s Interest in Employers’ Use of Criminal Records in Employment Screening
The EEOC enforces Title VII, which prohibits employment discrimination based on race, color, religion, sex, or national origin. Having a criminal record is not listed as a protected basis in Title VII. Therefore, whether a covered employer’s reliance on a criminal record to deny employment violates Title VII depends on whether it is part of a claim of employment discrimination based on race, color, religion, sex, or national origin.
Title VII liability for employment discrimination is determined using two analytic frameworks: “disparate treatment” and “disparate impact.” Disparate treatment is discussed in Section IV and disparate impact is discussed in Section V.
 
Disparate Treatment Discrimination and Criminal Records
 
A covered employer is liable for violating Title VII when the plaintiff demonstrates that it treated him differently because of his race, national origin, or another protected basis.54 For example, there is Title VII disparate treatment liability where the evidence shows that a covered employer rejected an African American applicant based on his criminal record but hired a similarly situated White applicant with a comparable criminal record.
Title VII prohibits “not only decisions driven by racial [or ethnic] animosity, but also decisions infected by stereotyped thinking . . . .” Thus, an employer’s decision to reject a job applicant based on racial or ethnic stereotypes about criminality – rather than qualifications and suitability for the position – is unlawful disparate treatment that violates Title VII.
Disparate Impact Discrimination and Criminal Records
 
A covered employer is liable for violating Title VII when the plaintiff demonstrates that the employer’s neutral policy or practice has the effect of disproportionately screening out a Title VII-protected group and the employer fails to demonstrate that the policy or practice is job related for the position in question and consistent with business necessity.
 
With respect to criminal records, there is Title VII disparate impact liability where the evidence shows that a covered employer’s criminal record screening policy or practice disproportionately screens out a Title VII-protected group and the employer does not demonstrate that the policy or practice is job related for the positions in question and consistent with business necessity.
Employer Best Practices
The following are examples of best practices for employers who are considering criminal record information when making employment decisions.
 
General
 
Eliminate policies or practices that exclude people from employment based on any criminal record.
Train managers, hiring officials, and decision makers about Title VII and its prohibition on employment discrimination.
 
Developing a Policy
 
Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct.
 
Identify essential job requirements and the actual circumstances under which the jobs are performed. Determine the specific offences that may demonstrate unfitness for performing such jobs. Identify the criminal offenses based on all available evidence. Determine the duration of exclusions for criminal conduct based on all available evidence .Include an individualized assessment..Record the justification for the policy and procedures .Note and keep a record of consultations and research considered in crafting the policy and procedures.
Train managers, hiring officials, and decision makers on how to implement the policy and procedures consistent with Title VII.
 
Questions about Criminal Records
 
When asking questions about criminal records, limit inquiries to records for which exclusion would be job related for the position in question and consistent with business necessity.
 
Confidentiality

Keep information about applicants’ and employees’ criminal records confidential. Only use it for the purpose for which it was intended:
 

Published: July 23, 2013
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Jason White

 Jason White is an associate attorney at Finestone & Morris in Atlanta, GA. With a J.D. from Emory University, Jason is a member of the State Bar of Georgia and the American Bar Association. His legal specialties include corporate, sports and entertainment, civil litigation, creditor’s rights, commercial leasing, estate planning, and criminal defense.

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