NPR reports that more than 90 percent of employers in the United States conduct criminal background checks, at least for some new hires. Many employers are trying to avoid liability if an employee commits a crime while on the job. But advocates are concerned that these background checks screen out entire categories of potential workers in ways that are discriminatory.
The EEOC shares those concerns. The EEOC revised its guidelines on criminal background checks. The EEOC essentially says employers should make an individual assessment of whether an applicant’s criminal activity (based on conviction and not just an arrest) is directly related to the job and demonstrates unfitness for performing the job.
This past December, the EEOC issued a strategic enforcement plan (SEP) describing its enforcement priorities. The first priority listed is eliminating barriers in recruitment and hiring, with a special focus on whether criminal background checks adversely affect minority groups. The EEOC believes that it may be better situated than private attorneys to address potential discrimination issues at the hiring stage because of its superior access to data, documents, and potential evidence of discrimination. The EEOC’s new enforcement guidance on considering arrest and conviction records in employment decisions will be discussed at ICLE’s 38th Annual Labor & Employment Law Institute (April 4 and 5 in Plymouth), including what factors the EEOC considers during a claim’s intake and investigation.