EEOC Scrutinizes Criminal Background Checks

Chris Hanslik

August 30, 2011

n the past few years, the Equal Employment Opportunity Commission (EEOC) has renewed its focus on the hiring process, including Title VII protections for ex-convicts. For years, the EEOC’s guidelines have disapproved of an employer’s absolute ban on hiring anyone with a criminal conviction. Rather, they direct that if an employer’s conviction-based screening policy causes a disparate impact against a protected class of individuals, the employer must show that it considered: (1) the “nature and gravity” of the applicant’s offense; (2) the “time that has passed since the conviction and/or completion of sentence;” and (3) the “nature of the job held or sought.”

EEOC guidelines do not have the force of the law. In fact, one federal court of appeals found that the EEOC guideline pertaining to criminal conviction bans “are not entitled to great deference.”1 The court went on to complain that the guideline does not explain how employers are supposed to consider the nature and gravity of the offense in crafting any bright-line policy on criminal convictions, nor do they address whether an employer can decide that certain offenses are serious enough to warrant a lifetime ban on not being hired.

In response to this criticism, the EEOC held a meeting in Washington D.C. on July 26 focusing on how the use of background checks, and in particular criminal background checks, adversely affect minorities. During the meeting the EEOC hinted that they plan to revise their 20-year-old background check guidelines. Given the fact that the EEOC has also held fairly recent meetings on the use of credit checks in the hiring process, to examine the treatment of unemployed job seekers, and regarding disparate treatment in 21st century hiring decisions, it is likely that revisions to these guidelines will be forthcoming.

What this Means for Employers

Given this recent flurry of EEOC activity, employers who conduct criminal background checks should continue to monitor further developments, not only on the federal level, but the state level as well. Many states have passed “ban the box” laws, which refers to removing check boxes on employment applications that ask if the applicant has ever been arrested or convicted of a crime.2 In addition, employers who have concerns about their hiring practices may want to consider conducting a privileged review of their screening methods to help identify any areas of potential concern. Finally, and most importantly, consider whether the information that you are obtaining during the hiring process is job-related. In the end, if the information that you are asking for is not directly related to the job in question, it may be best not to ask for that information.


1El v. South Eastern Pennsylvania Transportation Authority, 479 F.3d 232 (3rd Cir. 2007).
2California, Connecticut, Hawaii, Massachusetts, Minnesota, and New Mexico all have versions of “ban the box” laws.