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When Criminal Background Checks Violate the Law

March 3rd, 2012

The Equal Employment Opportunity Commission has a longstanding position that, under the Civil Rights Act of 1964, it is unlawful to exclude an individual from employment because of a criminal conviction record unless there is a “business necessity.” Why? Because more blacks and Hispanics will be excluded. Blacks and Hispanics are jailed at a much higher rate than white US residents, according to the US Census.

However, criminal history screening has become big business as “an increasing number of employers are seeking background checks out of security concerns.” Moreover, criminal records have become widely available. Records once held only in paper form by law enforcement agencies, courts and corrections departments are now routinely digitized and sold in bulk to the private sector. There is increased tension between civil rights and security interests.

Recently, the EEOC issued an opinion to the Peace Corps on its criminal background policy. At issue was the Peace Corps application which required disclosure of criminal history, including arrests.

EEOC Opinion: Arrest Records should be Treated Differently from Conviction Records

Conviction Records: In order to exclude a job applicant based on a criminal conviction, the EEOC staff attorney stated that the criminal conduct should be “recent enough” and “sufficiently job-related to be predictive of performance in the position sought, given its duties and responsibilities.” Thus, the attorney recommended that the Peace Corps narrow its criminal history inquiry to focus on “convictions that are related to the specific positions in question, and that have taken place in the past seven years . . .”

Arrest Records: According to the staff attorney, arrest records are unreliable indicators of guilt because, among other things, charges may have been dismissed or the public record may not contain subsequent favorable information about the arrest. As a result, she advised the Peace Corps to “consider whether its questions about arrests and charges will serve a useful purpose in screening applicants” and, if so, she recommended that the Peace Corps only ask about arrests and charges for offenses that are related to the position in question and give the job applicant a reasonable opportunity to dispute the validity of any information showing that the applicant has an arrest record.

Massachusetts will be introducing expanded employer access to state criminal records as of May 2012 to “align the state with the national trend trend towards demystifying criminal records” and to “capture a new revenue stream as well.”

So we will have more criminal information more easily. However, more information will give employers more responsibility for using criminal records only for “business necessity.” Employers need clarification from the EEOC in today’s changing world. What is “business necessity”? How far back can employers search? Further guidance from the EEOC is needed.

ABLE Associates complies with the laws in its application policy.

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