On April 25, 2012, the U.S. Equal Employment Opportunity Commission (EEOC) issued its Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964.
The EEOC believes that the use of criminal record history and other background checks can have a disparate impact by disproportionately screening out certain minorities without any business-related need.
After several potholes and speedbumps trying to enforce its guidance in the courtroom against employer-defendants, the EEOC has finally won a big race.
Yesterday, the EEOC announced here that it had settled a lawsuit filed against a major retailer back in 2013, in which the EEOC alleged that the employer violated federal law by denying employment to African Americans at a significantly higher rate than white applicants for failing the company’s broad criminal background check.
You can view a copy of the Consent Decree here.
Among other things, the employer did not admit any liability. But, it will pay $6,000,000 to settle the dispute. Plus, if the retailer wants to continue to consider criminal history in hiring decisions, it must first engage a mutually-agreed-upon consultant to evaluate the entire process and make recommendations. The purpose of these recommendations is to ensure that the company’s use of criminal history in hiring decisions is job-related and consistent with business necessity.
In developing the recommendations, the consultant will consider the following, using his professional judgment:
- the depositions taken in this case;
- the relevant publications on the use of criminal history for hiring decisions;
- the time that has passed since the conviction or release from incarceration;
- whichever is most recent, in determining the appropriate exclusionary period, if any;
- the types of behaviors typified by the crimes committed;
- the number of past offenses;
- the nature and gravity of the past offenses;
- the age of the applicant at the time of conviction and at the time of application;
- the nature of and risks associated with the company’s workplace;
- the potential for recidivism;
- The company’s sale of certain merchandise, including, but not limited to, beer, wine, and tobacco;
- The company’s job positions and duties, operational structure, and business objectives, including, but not limited to, loss prevention; and
- the nature of the job held or sought, which includes the nature of the job’s duties (e.g., access to cash and merchandise); identification of the job’s essential functions; and the circumstances under which the job is performed (e.g., the level of supervision, oversight, and interaction with co-workers or vulnerable individuals, and the number of employees present during operating hours)
Ultimately, neither the extra steps nor the big $6,000,000 check itself is going to put this retailer out of business anytime soon. But it does send a strong message to employers that the EEOC is not backing down when it believes that your business may have violated its enforcement guidance.
Consider also that your business may operate in a jurisdiction with similar state or local laws, such as ban the box. Plus, you must comply with the Fair Credit Reporting Act, and any state equivalent.
So, if you do run background checks, consider engaging an employment lawyer — maybe one like me — to review the entire process first and offer support along the way.