Many employers conduct criminal background checks on applicants as part of their employment process. However, the Equal Employment Opportunity Commission (EEOC) has found that blanket criminal background check policies have created a disparate impact on racial minorities, violating Title VII of the Civil Rights Act of 1964. In response, the EEOC recently issued Guidance that seeks to prevent the results of routine criminal background checks from having a disproportionate impact on minorities.
Here’s an at-a-glance view of the Guidance:
- There are differences between arrest and conviction records. Applicants should not be excluded based solely on an arrest; however, there may also be reasons for an employer to not rely solely on a conviction record when making employment decisions.
- Employers must treat criminal history information equally for applicants across differing race and/or national origins.
An employer’s blanket criminal background check policy may violate the law if it’s not job-related and consistent with business necessity. To meet the “job related and consistent with business necessity” defense, employers should:
- Validate the criminal conduct exclusion (for the specific position) based on data or analysis that the criminal conduct is likely to reoccur on the job; or
- Develop an individualized assessment (for those who have a criminal history) to consider the nature of the crime, the time elapsed, and the nature of the job.
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