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On the subject of criminal background checks, employers are
often caught between the proverbial rock and a hard place. On the
one hand, use of criminal background checks can, and has, led to
discrimination lawsuits in a variety of contexts. On the other,
background checks can provide relevant information about candidates
and can help the employer avoid a negligent hiring lawsuit. Both
the Equal Employment Opportunity Commission and various courts have
weighed in on this issue and the guidance they have provided is
mixed. Damned if you do, damned if you don't.
The Current Law on Background Checks
The EEOC has long taken the position that broad use of criminal
background checks to screen applicants and policies prohibiting the
hiring of applicants with a criminal record are likely to
disparately impact minorities, and that employers causing such an
impact violates Title VII. Notably, the EEOC does not prohibit, or
even recommend against using, criminal background checks to screen
applicants. Rather, the EEOC cautions against blind
disqualification of an applicant based purely on the fact that the
applicant has a criminal record.
In a recent enforcement guidance release titled,
"Consideration of Arrest and Conviction Records in Employment
Decisions Under Title VII of the Civil Rights Act of 1964,"
the EEOC reiterated its position that certain uses of criminal
background checks in making employment decisions can violate Title
VII. Once again, the EEOC stated its position that disqualification
of an applicant based purely on the existence of a criminal record
is likely to discriminate against applicants based on race and
national origin.
The EEOC is highly suspicious of employment decisions based
purely on an arrest record. According to the EEOC, the "fact
of an arrest does not establish that criminal conduct occurred, and
an exclusion based on an arrest, in itself, is not job-related and
consistent with business necessity." After all, an arrest is
merely a governmental act. A conviction, on the other hand,
sufficiently establishes that the underlying conduct occurred.
Nevertheless, the EEOC notes that there may be reasons for an
employer not to rely on a conviction record alone in making hiring
decisions.
According to the EEOC, an employer's facially neutral policy
that all individual applicants will be screened and that those with
records of certain crimes is not enough, in and of itself, for the
employer to establish a defense that the background screening
policy is job-related and consistent with business necessity.
Instead, the EEOC would require that the employer develop a
"targeted screen considering at least the nature of the crime,
the time elapsed and the nature of the job," followed by an
opportunity for the candidate to be individually assessed to
determine if the exclusion of the individual candidate would be
reasonable and necessary under the circumstances. In essence, the
EEOC wants employers to consider each applicant individually before
excluding a portion of applicants based on a criminal record.
Pennsylvania law on background checks in employment decisions is
similar to the EEOC's position. The use of background checks in
hiring decisions in Pennsylvania is governed by 18 Pa. C.S.
§9125, which expressly permits employers to consider felony
and misdemeanor convictions of applicants in making hiring
decisions. However, an applicant's conviction may only be
considered if the conviction relates to the applicant's
suitability for the specific job for which the applicant has
applied. If the employer relies on a criminal conviction that is
unrelated to the job, the act authorizes the applicant to sue and
to recover actual damages, punitive damages and attorney fees.
Finally, if an employer relies on a criminal conviction, in whole
or in part, in choosing not to hire an applicant, the employer must
notify the applicant in writing of that decision.
In Philadelphia, the mayor recently signed the "Fair
Criminal Records Screening Standards" ordinance, which was
affectionately dubbed "Ban the Box," and which has the
effect of limiting the ability of a Philadelphia employer from
considering criminal records at an early stage in the interviewing
process. In essence, the employer may not inquire about an
applicant's criminal record during the application process and
bans the use of criminal background checks during the same period.
From a practical perspective, "Ban the Box" prohibits the
use of questions regarding criminal backgrounds and the use of
background screening until after the applicant has had an initial
interview.
Published in The Legal Intelligencer on August 8,
2012.
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