Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
Employers that use criminal record-screening policies must continue to be vigilant about compliance with all applicable laws and should know that the EEOC’s scrutiny of such policies, while perhaps scaled back, has not ended.1 To the contrary, the EEOC has demonstrated a continued interest in discouraging employers from directly or indirectly screening out job applicants who belong to protected classes under Title VII and tend to be arrested and convicted at disproportionately higher rates.
The EEOC recently reached a conciliation agreement with a nationwide retailer to resolve claims of race discrimination brought by an African-American applicant whose offer of employment was rescinded due to his background check. The EEOC’s view is that background check policies tend to have a discriminatory effect on minorities, because they are disproportionately incarcerated and therefore make up the larger percentage of the population with criminal records.
The EEOC’s press release, dated September 24, 2018, explains that the retailer agreed to the following changes to its background check policies: (1) remove any blanket exclusions for criminal convictions; (2) provide an individualized assessment for all applicants; (3) postpone questions about criminal convictions until later in the hiring process; and (4) require its human resource employees and other essential staff to participate in mandatory implicit bias training. The EEOC hopes that these changes will give applicants a fair chance at employment by delaying any consideration of their criminal history until after the applicant has been evaluated on their qualifications.
This is not the first time that the EEOC has gone after an employer where the background check policies appears to deter African-American applicants from applying for a position with an employer. The EEOC’s guidance on criminal background checks in employment, issued in 2012, notes that consideration of criminal records can result in both disparate treatment discrimination (where an employer declines to hire a minority because of a criminal record) and disparate impact discrimination (where an employer’s practice of relying on criminal background checks disproportionately results in screening out minority applicants).
The EEOC and plaintiff-side firms continue to pursue claims involving criminal record screening policies.2 It is therefore essential that all employers take measures to comply with ban-the-box laws and the Fair Credit Reporting Act (FCRA),3 as well as updating the recently-enacted FCRA statutory summary of rights.4
1 See Rod M. Fliegel and Molly Shah, EEOC's Background Check Guidance Suffers Loss in Texas Federal Court, Littler ASAP (Feb. 5, 2018).
2 See Rod M. Fliegel, Criminal Record Screening Policies Continue to Raise Important Compliance Issues, Littler ASAP (Apr. 6, 2018).
3 See Rod M. Fliegel and William J. Simmons, Third Circuit Holds Individual Plaintiffs Lack Standing for Some Alleged Violations of the FCRA's Pre-Adverse Action Notice Requirement, Littler Insight (Sept. 11, 2018); Rod M. Fliegel and Julie A. Stockton, Eighth Circuit Holds Individual Plaintiff Lacks Standing for Alleged Violations of the FCRA’s Authorization and Disclosure Requirement, Littler Insight (Sept. 10, 2018); Rod M. Fliegel, Seventh Circuit Holds Class Action Plaintiff Had Standing for an Alleged Violation of the FCRA’s “Pre-Adverse Action” Notice Provision, Littler ASAP (Aug. 30, 2018); Rod M. Fliegel, The Ninth Circuit Holds Plaintiff Lacked Standing for an Alleged Violation of the FCRA's "Pre-Adverse Action" Notice Provision, Littler ASAP (July 18, 2018); Rod M. Fliegel, Alison Hightower, and Allen Lohse, High Alert for California Employers and Employers Nationwide for the Second Wave of FCRA Class Actions, Littler Insight (Oct. 19, 2017).
4 See Rod M. Fliegel and William J. Simmons, San Francisco is Likely to Amend its Ban-the-Box Law, Littler ASAP (updated Sept. 27, 2018).