United States: By The Way, Are You A Criminal?

The EEOC's Version Of "Don't Ask, Don't Tell"

You've probably heard the news by now – the EEOC seems to want all employers to discontinue, or at least significantly curtail, their use of criminal-background checks. The EEOC's Guidance outlines the agency's position on criminal-background-check policies, but leaves many important questions unanswered. Understanding that the Guidance is not law, but only the EEOC's interpretation of the law, you should keep several issues in mind when hiring.

Can I ask about criminal history on my application?

The EEOC recommends that employers not ask about convictions on job applications. But, if employers do ask, the Commission recommends asking only about convictions that are job related and consistent with business necessity. Your approach should include language indicating that not all convictions will bar employment and you should consider providing a space for the applicant to explain the conviction. Additionally, many states have required language for applications and some may prohibit such inquiries.

When should I run a criminal-background check?

It depends. As noted above, the EEOC would probably prefer that employers eliminate criminal background policies altogether. Recognizing that this is impractical for many employers, due to the risk of negligent hiring, retention, or supervision claims, among other related issues, you should consider at what stage of your hiring process to run criminal-background checks.

The most conservative approach would be to make a contingent offer of employment based on successful completion of the background check, which will impact the least number of applicants. You may also consider waiting until you have identified interviewees, or running the check after excluding applicants who are not minimally qualified or have negative references. Be aware that the earlier in the process you use the background check policy, the number of applicants affected will increase, along with your potential liability.

Can I exclude an applicant based on an arrest?

Probably not. The Guidance is clear that exclusion based solely on an arrest record (without further inquiry) is not acceptable. Many employers are understandably concerned about pending arrests. To consider any arrest, including those pending, requires an independent investigation of the facts.

However, if you perform an independent investigation that confirms the conduct underlying the arrest, and if exclusion of persons committing such acts is job related and consistent with business necessity, you may permissibly exclude the applicant. This may be impractical for many employers – but if you cannot perform the investigation, you should not consider the arrest, at least according to the EEOC.

What does it mean to be "job related and consistent with business necessity?"

It's more complicated than it seems. To determine whether a particular criminal history is job related and consistent with business necessity, you need to consider three factors: 1) the nature and gravity of the offense or conduct, including the harm caused, the specific elements of the crime, and whether it was a felony or misdemeanor; 2) the time that has passed since the offense or conduct and/or completion of the sentence; and 3) the nature of the job held or sought.

How old can a conviction be in order to be considered relevant?

The EEOC did not provide specific guidance on this question, but instead recommended that employers consider studies and recidivism data to determine the relevance of a particular conviction. Essentially, if an applicant was convicted for petty theft 15 years ago, but has not been convicted of a crime since, that individual may not be statistically more likely to steal than any other applicants. Obviously, the shorter the period of time considered, the more relevant the conviction. But, this must be balanced against your ability to protect your company against theft and negligent hiring, retention, or supervision claims.

How do I evaluate the nature of the job held or sought?

By reviewing your job descriptions. To determine whether a certain offense is job related, you should review the essential functions of each job or classification you use. If you are hiring a delivery driver for your restaurant, you may want to exclude those convicted for driving under the influence. However, if you are hiring a cashier for the same restaurant, a conviction for DUI may not be relevant. Blanket polices for all job descriptions are likely unlawful according to the Guidance.

Should I be writing this down?

Yes. We recommend that you document your efforts to make the considerations described above. If you rely on a particular study or statistic, you should keep a copy with your revised policy. Documenting your efforts will better prepare your company in the event of an investigation or litigation.

Do I have to consider information the applicant provides?

Yes. In almost all cases, you should provide an opportunity for the applicant to provide information that may mitigate the applicant's criminal history and consider such information. Examples of information you may receive include employment references, job history subsequent to the conviction, or facts surrounding the offense.

But be cautious to ensure that your consideration is not different based on race, or any other protected category, as this can lead to a claim of disparate treatment discrimination.

Are there any less discriminatory alternatives to my policy?

This is a question you should ask once you have revised your policy. Your policy, even though revised to be consistent with the Guidance, may still have an adverse impact on minorities. Therefore, you should always consider alternative policies or practices that may reduce this impact. An example may be allowing applicants more time to provide individual information.

What if I must do a check to comply with federal or state law?

Compliance with federal law is a defense, but the EEOC takes the position that Title VII preempts state law and compliance with state requirements is not a defense to liability. If there are federal requirements for your employees, you should consider whether your policy excludes applicants beyond the federal requirement. To the extent you exclude applicants that you are not required to exclude, you may be liable. The EEOC does not provide any answers for employers that are subject to state laws or regulations. If you have more stringent state requirements that apply to your applicants and/or employees, you may wish to seek legal counsel.

I heard that Congress defunded the Guidance, so do I still need to comply?

Yes. A Congressional Committee recently voted to defund the Guidance. This action demonstrates that many groups believe the Guidance may be detrimental to employers. However, even if the Guidance is defunded, the EEOC will likely continue its investigations of criminal-background policies through its enforcement of Title VII. Therefore, we recommend that you still take the time to review your policy, consider revisions, and to be sure you understand the risks if you choose not to follow the Guidance.

More To Come

As you can tell, there are numerous questions left unanswered by the Guidance. Drafting a background check policy that is both consistent with the Guidance and that adequately protects your business can be a frustrating process. Nevertheless, the EEOC intends to increase its enforcement of systemic discrimination over the next few years, and revising your policy now may help minimize your risks if the EEOC decides to investigate your company.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions