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Criminal Background Checks Face Fresh Scrutiny Under Federal Laws

executiverisknetwork.com—Cate Chapman

The EEOC has begun to track charges of discriminatory hiring on the basis of arrest and conviction records.

While people with a criminal history are not a protected class under the 1964 Civil Rights Act enforced by the agency, the EEOC said in 2012 guidance that the law prohibits employers from treating job applicants with similar criminal histories differently, based on race or other protected characteristics.

The law also prohibits exclusion of people on the basis of their records unless the exclusion is “job related and consistent with business necessity,” the agency said, because of the disparate impact on groups that are disproportionately arrested and convicted compared to the general public.

The agency’s newest category of charges, created in 2014, is a sign of the times. The pervasiveness of criminal background checks involving information that is available online but sometimes inaccurate or difficult to interpret, along with an exponential increase in the arrests and convictions of black and Hispanic men, has made finding and keeping jobs for these groups that much harder.

Their increased contact with the criminal justice system comes amid a general escalation in arrests and convictions in the US during this century. The DOJ’s statistical department said in 2009 that if incarceration rates don’t decrease, some 6.6 percent of all persons born in the US in 2001 will serve time in state or federal prisons—compared to 1.8 percent of the adult population in 1991.

And black and Hispanic men are arrested at two to three times the rate of the general population, according to the FBI.

“It’s a social justice issue,” said Christopher McNerney, an associate with Outten & Golden, which represents plaintiffs in discrimination charges on the basis of criminal history. “The people disproportionately affected are those of color.”

It’s also an exposure issue for employers, who must sometimes walk a fine line between negligent hiring and potential liability in the eyes of the EEOC on their use of background checks.

While Title VII doesn’t prohibit checks or consideration of past offenses, the federal agency says it does oblige employers to weigh factors such as the nature of the offense, how long ago it occurred and its relevance to the job in question.

Also governing the use of background checks is the Fair Credit Reporting Act, which applies to criminal as well as credit records.

The FCRA stipulates how employers must disclose and seek permission for background checks from applicants and employees. It also specifies how employers who plan to take “adverse action” must notify subjects beforehand, to allow for individual review, as well as afterward.

Littler Mendelson said in an August 2014 report that, based on its own litigation experience, class action filings alleging non-compliance with the FCRA had roughly tripled from 2013 and “greatly exceeded” the number of filings prior to that year.

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