Last week, the Equal Employment Opportunity Commission filed two lawsuits alleging employers engaged in race discrimination by conducting criminal background checks on its employees. In a Q&A with The Oklahoman, McAfee & Taft employment lawyer Paul Ross said such background checks are legitimate tools employers can use, but when used improperly they can become illegal.
“The EEOC believes criminal background checks may have a disproportionate effect on minority individuals,” Ross told The Oklahoman. ”A company may require all new hires to pass criminal background checks. But if the policy results in a higher number of minority individuals being screened out of employment opportunities, one might argue it has a disparate impact on that minority group. If that disparate impact is proven, the policy would be illegal under federal employment law.”
Ross said there are ways employers can protect themselves from discrimination lawsuits like those recently filed by the EEOC.
“The EEOC issued a long, detailed discussion of criminal background check policies last year. Employers should become intimately familiar with those guidelines before using criminal background checks to make employment decisions,” Ross said. ”A strong human resources professional or employment attorney can help structure a criminal-background check policy around the detailed discussion in that memorandum, including ensuring the employer’s policy doesn’t automatically exclude a person from employment simply because he or she has a past criminal conviction.”
Ross advised employers that, at a minimum, they need to make an individualized inquiry into the particular conviction as it applies to the particular job at issue, and how long ago that conviction occurred.