Criminal background checks for employment purposes are commonplace. But recent literature from the Equal Employment Opportunity Commission (EEOC), the federal agency charged with enforcing employment discrimination laws, has suggested that certain criminal background check policies may violate Title VII of the Civil Rights Act of 1964 due to the varying rates of criminal activity among different minority groups.
Title VII prohibits discrimination against a job applicant or employee because of the person’s race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. Most employers with at least 15 employees are covered by this law.
While a criminal background is not one of the protected traits under Title VII, the EEOC will look for the disparate treatment or a disparate impact on a protected class of individuals due to an employer’s criminal background check policy.
Disparate Treatment Discrimination
Disparate treatment discrimination occurs when an applicant or employee is treated differently because of his race, national origin, or another protected basis. When investigating disparate treatment claims related to criminal background checks, the EEOC will look for the following factors:
- biased statements based on group stereotypes;
- inconsistencies in the hiring process;
- similarly situated comparators (individuals substantially similar except for membership in a protected group);
- employment testing and statistical evidence to determine if criminal history is weighed more heavily against those of a protected group.
To avoid disparate treatment discrimination claims, avoid preconceived notions regarding a particular group’s propensity to commit crimes and treat all applicants and employees the same regardless of their membership in any protected group.
Disparate Impact Discrimination
Disparate impact discrimination occurs when an employer’s neutral policy or practice has the effect of disproportionately screening out a protected group of individuals. If this is established, it is up to the employer to show how the policy is job related for the position in question and consistent with business necessity. In the context of a criminal background check policy, the employer must demonstrate how the screening process is related to the essential job requirements of the position. If your business is excluding any applicant with a criminal record, you may be disparately impacting one racial group over another.
What This Means For Criminal Background Check Policies
The overall rejection of an applicant or employee based upon criminal history is no longer sufficient. For each position, you should identify the critical job requirements and circumstances under which the job will be performed. Then, specifically tailor your criminal background check policy to exclude individuals that are unsuited for the job based upon the requirements and circumstances you have identified. This assures that your policy is related to the essential job requirements and reduces your risk of liability under Title VII.
For example, if your employees are required to interact with customers on a daily basis, your background check should look primarily for violent felonies. Non-violent drug or property crimes may not be as relevant to the position, especially if the employee is otherwise qualified.
What This Means For Individual Employee Assessments
Again, the overall rejection of an applicant or employee based upon criminal history is not sufficient. For applicants or employees who have been convicted of a crime, you should weigh the gravity of the offense, the nature of the offense, and the time that has passed since the offense and compare these factors to the specific requirements of that applicant or employee’s position. Identify the specific requirements and traits necessary for the position and exclude only applicants or employees that have committed crimes related to these requirements and traits. In addition, consider placing a lesser emphasis on misdemeanors, non-violent crimes, and applicants or employees who have demonstrated remorse or personal growth since the time of the conduct.
For example, the specific requirements of a bank teller position include the handling of money. The traits necessary for this position may include honesty and trustworthiness. Therefore, your assessment should look for crimes involving dishonesty, such as theft, embezzlement, or fraud. A drug charge or DUI conviction may not be as relevant to the specific requirements and traits of this position.
Examine your current criminal background check policy to make sure it is only screening for those crimes that are related to the essential job requirements and traits necessary for specific positions. Tailor individual assessments so that they are examining for the same.
Finally, whether as part of a criminal background policy or individual assessment, avoid asking for arrest records and stick to convictions. Convictions may include plea bargains in addition to convictions by a judge or jury. It is not the arrest that is important; it is the conduct underlying the conviction. Finally, train your employees supervising the background checks and assessments. Any policy is only as good as those that enforce it.