Many employers use background checks to combat theft and fraud as well as prevent workplace violence and negligent hiring lawsuits. About 92% of companies run criminal background checks on some or all applicants. Although the use of background checks serves a practical purpose in locating the “right” employee for the job, the EEOC warns that using of an individual’s criminal history when making employment decisions may be discriminatory under Title VII of the Civil Rights Act of 1964.

Criminal records reduce an applicant’s likelihood of a job callback or offer by nearly 50%. These staggering statistics caused the EEOC to provide updated guidelines regarding the use of arrest and/or conviction records in making employment decisions, to discourage discrimination against individuals with a criminal background. The new Enforcement Guidance provides an outline of provisions to guide employers in utilizing background checks for screening job applicants and making other employment decisions.

Disparate Treatment and Disparate Impact

Under Title VII, a covered employer is liable for discrimination against members of a protected class based on disparate treatment or disparate impact. Disparate treatment arises when an employer intentionally treats an employee differently based on the employee’s protected class status (i.e. race, gender, national origin). This type of discrimination is based on unequal treatment of an individual. In contrast, disparate impact occurs when a neutral policy or practice has the effect of treating individuals disproportionately on the basis of a protected category. This type of discrimination is based on unequal treatment of a protected group whether intentional or not. The EEOC  explains that in some instances, refusing to hire applicants due to their criminal records could have a disparate impact based on race and national origin. Thus even if a consistently applied background check policy is used to make employment decisions, it may still cause unlawful discrimination based on the applicants’ race and national origin.

An employer’s defense to disparate impact is to prove that the policy or practice is “job related and consistent with business necessity”.  The Enforcement Guidance states that the employer must do the following to validate business necessity or job relatedness for using background checks.

• Use the Uniform Guidelines on Employee Selection Procedures.
• Develop a targeted screening process to consider at least the nature and gravity of the offense or conduct, the time that has passed since the offense, conduct, and/or completion of the sentence and the nature of the job held or sought. This provides an opportunity for an individualized assessment of applicants instead of a “blank” policy.

 Arrest vs. Conviction Records

Another area for potential discrimination is in the interpretation of an arrest versus a conviction. An arrest is an exercise of the power to deprive a person of his or her liberty. An arrest is not a job-related factor and does not state that criminal conduct has occurred. An employer can only make an employment decision based on the conduct underlying an arrest if this conduct makes the individual unsuitable for the position. However, a conviction record can be used as evidence to disqualify the individual for the position.

 Best Practices for Employers

• Determine the positions which require a background check based on job relatedness and business necessity.
• Develop a well tailored written policy and procedure for screening applicants.
• Comply with federal law by only considering convictions that are both job-related and recent.
• Continuously train managers, hiring personnel and decision–makers on Title VII guidelines and updates.