Criminal Records Check in Employment for Small Business

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In April 2012, the Equal Employment Opportunity Commission (EEOC) expanded its guidance, “Enforcement Guidance on the Consideration of Arrest & Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964,” and addressed in detail an employer’s use of criminal records checks information in employment decisions. While the EEOC always has cautioned employers not to use such records to preclude employment across the board, the expanded guidance provides insight on how to use criminal records check information in employment decisions without running afoul of Title VII.

The guidance, which applies to employers with 15 or more employees, warns employers that the use of criminal records checks information in hiring decisions may lead to discrimination claims. These claims will be based, most likely, in racial or national origin discrimination because statistics show that African Americans and Hispanics are arrested and convicted at a rate disproportionate to their numbers in society. Consequently, if an employer uses criminal records check information as a screening tool, eliminating all applicants with any criminal record, the employer will run afoul, more likely than not, of the guidance.

The guidance does not preclude the use of criminal records checks information in employment decisions. Rather, it requires that the employer use such information in a neutral manner so as not to screen out automatically applicants who are in “protected classes,” particularly race and national origin.

The guidance suggests a three pronged test as well as “best practices” to guide the employer in its use of criminal records checks. Under the test, the employer should ask three questions: what is the nature and gravity of the criminal offense; how long has it been since the applicant committed the offense; and, what is the relationship between the offense committed and the job’s requirements. In addition, the employer should determine if there are mitigating circumstances regarding the criminal records check information by giving the applicant an opportunity to explain and demonstrate why the information should not disqualify the applicant from the job. If there is a relationship between the position and the criminal record and a substantial amount of time has not passed between the offense and the application, then it may be appropriate to deny the applicant the position.

The guidance’s “best practices” recommend that employers eliminate policies that preclude employment based on any criminal record without context, train hiring managers about Title VII and how to apply it legally to a criminal records check policy, and develop a policy that matches the job requirements and the offenses that potentially disqualify an applicant from a job. The “best practices”also recommend that employers set a time limit for consideration of a criminal history and allow applicants to respond to it. Finally, the “best practices” recommend a written policy with its justifications, preservation of the research used to develop the policy, and appropriate confidentiality rules.

While using the three pronged test and the “best practices” in developing a criminal records check policy does not guarantee a claim free future, it enables the employer to provide a reasoned defense to discrimination claims filed against it. As always, before instituting any policy which has legal implications, it is advisable to seek the advice of legal counsel.

Law Office of Paula M. Potoczak
218 North Lee Street, Third Floor
Alexandria, Virginia   22314
(703) 519-3733 (Telephone)

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