A criminal background check for job applicants has become standard operating procedure at many companies. However, companies that routinely conduct criminal background checks should take a hard look at their current policies and procedures. In April, the US Equal Employment Opportunity Commission (EEOC) issued a new guidance about the use of arrest and conviction records when hiring new employees.

Updated guidance

Several of the key points in the guidance include criminal records, disparate treatment and disparate impact.

Under Title VII, organizations may be liable for discrimination claims when their employment practices lead to disparate treatment or disparate impact. The guidance addresses how the use of criminal background checks could lead to either type of discrimination.

In “disparate treatment” cases, employers may be liable for Title VII violations if they treat applicants or employees differently because of race, national origin or other protected statuses.

The US Equal Employment Opportunity Commission (EEOC) highlights several ways it may determine that an employer’s policies cause disparate treatment liability. These can include:

  • Biased statements
  • Inconsistencies in the hiring process
  • “Similarly situated comparators”
  • Employment testing
  • Statistical evidence

Employers may create “disparate impact” liability when seemingly non-discriminatory policies or practices disproportionally screen out a protected group, or if employers fail to demonstrate that policies or practices that lead to disparate impact are job related and consistent with business necessity.

Now what?

For employers who use criminal background information when hiring, the EEOC has provided several best practices.

In general, the EEOC advises employers to do away with policies and practices that automatically exclude applicants from jobs based on any criminal record. It advises against asking about conviction records on job applications.

Managers and others who make hiring decisions should be trained on Title VII and how it prohibits employment discrimination. Employers should “develop a narrowly tailored written policy and procedure” around screening for criminal conduct. Employers should identify essential job requirements for each position and realistically consider the employee’s work situation and environment. Then, employers should identify which specific crimes could make an applicant unfit to perform the job. Employers should also consider how long an applicant’s past criminal conduct should be considered, and look at each case individually.

When asking applicants about their criminal records, hiring managers should limit their questions to situations that are job related and consistent with business necessity. They must be sure to keep all information about criminal records confidential and not use it for any other purpose except for the hiring decisions it was intended for.

The EEOC recommends putting in writing the justification for the policies and procedures.

Employers who have relied on criminal background checks as an effective, efficient way to screen potential workers should consult with their attorneys and HR experts for specific guidance. They may need to fundamentally reconsider how they conduct screenings, employee interviews and management training in order to stay in compliance with Title VII and avoid charges of discrimination under the new guidance.

Richard Alaniz is senior partner at Alaniz and Schraeder, a national labor and employment firm based in Houston.