JDSupra (03/05/2012)

The U.S. Equal Employment Opportunity Commission states that employers may be in violation of Title VII of the Civil Rights Act of 1964 by refusing to hire people with criminal conviction records, unless a business necessity justifies such a practice. The EEOC says basing employment decisions on criminal conviction records puts African-Americans and Hispanics at a disadvantage because they are convicted at a rate that is disproportionately higher than their representation in the population. It defines “adverse impact discrimination” as a “substantially different rate of selection in hiring, promotion, or other employment decision which works to the disadvantage of members of a race, sex, or ethnic group.” To determine whether basing hiring decisions on criminal convictions is a business necessity, the EEOC says they must consider the nature and gravity of the offense, the time that has passed since the conviction or completion of the sentence, and the nature of the job.

Employers, especially in the hospitality industry, have been targeted by the EEOC’s systemic investigations as part of its E-RACE (Eradicating Racism and Colorism from Employment) initiative, which focuses on the use of arrest and conviction records in hiring practices. Experts say employers using criminal background checks should assess their current policies to ensure that the credit reporting agency they use complies with state laws and the federal Fair Credit Reporting Act and that their policy makes the aforementioned considerations set forth by the EEOC regarding the applicant’s offense. Additionally, they should avoid implementing blanket policies in which no one with a criminal record is hired.