On April 25, 2012, the U.S. Equal Employment Opportunity Commission (EEOC) issued a memorandum outlining its position on employer use of criminal records in the employment decision-making process. This new guidance both consolidates previous EEOC memorandums on the same issue and offers some new, expansive positions about what it considers to be potentially improper practices under Title VII. While the new guidance falls short of absolutely prohibiting the use of criminal background checks by employers, it is clear that employers with broad criminal background check policies may face EEOC scrutiny in the future.
The memorandum provides several important discussions that should be of interest to human resource professionals, including the standards applicable to disparate treatment claims and disparate impact claims. The memo also outlines the different standards applicable to arrest records as distinguished from conviction records and sets forth examples of employer conduct it would consider inappropriate. Finally, the memorandum sets forth what it considers to be “best practices” by employers who use criminal records.
While the memorandum sets forth a number of details, the key takeaway at this point is the EEOC’s position that employers should not have blanket policies excluding individuals from employment based upon criminal records. Instead, employers should establish policies that evaluate the individual circumstances of the position at issue and the particular offense.
Stay tuned for more on this guidance as it’s evaluated over the coming weeks. And, if you have concerns about your policies and/or practices when it comes to criminal background checks, please contact one of McAfee & Taft’s employment law attorneys.
About the author
Paul Ross is a trial lawyer with the McAfee & Taft law firm. His primary practice involves the representation of employers in labor and employment disputes. His experience includes first-chair management of discrimination, retaliation and wrongful discharge matters in both federal and state courts, trial and appellate, as well as in arbitration and before governmental agencies. He routinely represents employers in a wide variety of matters, including claims arising under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Family and Medical Leave Act, the Age Discrimination in Employment Act, the Fair Labor Standards Act and other federal and state laws governing employers.
Paul also provides training and on-demand advice to employers regarding litigation avoidance and assists in day-to-day planning and decision-making, discrimination and harassment investigations, development of policies and procedures, employment contracts, non-competition and confidentiality agreements, reductions-in-force, and alternatives to reductions-in-force.
Paul is a highly regarded speaker on issues in employment law, regularly addressing various human resource groups and management-level employees. In addition to his contributions to EmployerLINC, he is a contributing author to the Oklahoma Employment Law Letter as well as other industry and professional publications. He has also provided training to other Oklahoma lawyers on employment law topics through the Oklahoma Bar Association’s Law of the Workplace program in Oklahoma City and Tulsa.
In 2011, Paul was appointed to serve as an administrative law judge for the Oklahoma Department of Labor.
Paul’s achievements have earned him inclusion in The Best Lawyers in America and Oklahoma Super Lawyers‘ list of “Oklahoma Rising Stars,” which recognizes the state’s top up-and-coming attorneys.
Prior to embarking on his legal career, Paul taught mathematics at Edmond Santa Fe High School in Edmond, Oklahoma. He also supervised a 100+ member customer service staff at one of the nation’s largest mortgage servicing companies.