Are Employer Criminal Background Checks Illegal?

August 5, 2011

Are Employer Criminal Background Checks Illegal?

The U.S. Equal Employment Opportunity Commission (EEOC) recently convened a meeting on July 26, 2011 to address the use of criminal records in the hiring process as part of a series of meetings called by the EEOC in recent months to examine the implications of various hiring practices.  The purpose of this meeting was to examine the problems of using arrest and conviction records in hiring, identify employer best practices, and determine appropriate ways in which arrest and conviction records are used.  “The outcome could significantly impact how the EEOC treats employer use of criminal background checks in hiring decisions at a time in which employers are increasingly seeking criminal background checks out of security concerns,” says Nilan Johnson Lewis attorney Sejal Desai Winkelman. 

This is not the first time that the EEOC has weighed in on the topic of discrimination based on criminal background.  There is currently no federal law that directly prohibits employment discrimination based on a criminal record, but the EEOC and some courts have ruled that discrimination based on a criminal record can be a form of race discrimination against minority groups with higher rates of criminal convictions.  In fact, current EEOC guidelines state that a company must have a business necessity to deny employment to an applicant based on a criminal record.  Specifically, to determine if a business necessity is present, employers must consider (1) the nature and gravity of the offense or offenses for which the applicant was convicted, (2) the time that has passed since the conviction and/or completion of the sentence, and (3) the nature of the job held or sought.  In other words, the employer must demonstrate that it considers the relationship of the crime relevant to the position sought. 

Some states, including New York, Pennsylvania, and Wisconsin, have followed suit by enacting laws to make discrimination based on conviction or arrest record illegal.  “At this point, it is uncertain whether the EEOC will take any action with regard to the use of criminal records checks.  Nonetheless, in light of the EEOC guidelines and current caselaw, employers would do well to examine their hiring processes by deliberating on each particular job theyare seeking to fill to determine whether criminal arrest and conviction history information sought in employment applications, during interviews, and in background checks is actually necessary,” said Winkelman.  

Contact: Sejal Desai Winkelman