EEOC Guidance on Background Checks
As I have commented before, the use of background checks by employers has increased significantly in recent years. There are now services everywhere, and the cost for these checks has dropped significantly. With the studies that document the cost to replace an employee, employers are looking to any means to screen candidates more effectively. The EEOC has cited studies that indicate as many as 90% of applicants undergo criminal background checks.
With that backdrop, the EEOC has provided Enforcement Guidance No. 915.002 regarding the use of criminal background information. This document does not alter the legal framework that covers background checks but sets out several points for consideration by employers.
Because certain racial and ethnic groups may be incarcerated at a higher statistical rate than others, use of criminal history for employment decisions could result in discrimination under Title VII. This discrimination would arise under one of two theories: disparate treatment or disparate impact. For disparate treatment, an employer treats a person differently because of race or national origin (allowing “group-related stereotypes” or allowing a non-minority applicant to explain criminal history while not allowing a minority candidate to do so).
For disparate impact, a policy or practice that seems neutral on its face may discriminate if it serves to screen out a protected group in a disproportionate way, and the policy or practice is not specifically job-related for the position and necessary to business. The EEOC has found that national data for arrest and incarceration rates for African Americans and Hispanics are sufficient for a finding of disparate impact for those protected groups when using criminal background data without job-related conditions. That finding shifts the burden of proof to the employer to show no disparate impact but can be contradicted by local data or information by a particular employer about its own hiring practices. There are a number of factors to review, and the EEOC draws a sharp contrast between convictions and arrests. For further information, the EEOC Guidance can be accessed by clicking on this link: http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm.