Controversy Over Criminal Background Checks

prisonLast year, the Equal Employment Opportunity Commission (EEOC) issued policy guidance on criminal background checks. The guidance pointed out that a blanket policy of refusing to hire anyone with an arrest record or a criminal conviction could have a disparate impact, based on our country’s racially skewed criminal justice system. The guidance cautioned against blanket or “bright line” policies that exclude everyone with any conviction, and provided three factors employers should consider in deciding whether to exclude a particular applicant based on a criminal record:

  • the nature and seriousness of the crime
  • how much time has passed since the offense, and
  • the nature of the job (how much supervision the employee will have, where the job is performed, and so on).

The EEOC also suggested that employers give applicants an opportunity to provide mitigating evidence. (See our article describing the guidance, Getting Hired With an Arrest or Conviction Record.)

Last month, the EEOC filed two lawsuits against employers alleging that their policies of excluding certain applicants with criminal records constituted disparate impact race discrimination. These lawsuits didn’t go unnoticed: Just a few days ago, the Attorneys General of nine states banded together to ask the EEOC to withdraw these lawsuits and dump its policy guidance. Among other things, the AGs argued that the EEOC was improperly intruding into state law, which in some cases require employers in certain fields to exclude applicants based on criminal history alone, and that conducting the individual inquiry into the facts behind every applicant’s record was too time-consuming and expensive. Essentially, the AGs believe it should be legal to have a blanket policy of excluding any applicant who is convicted of particular crimes. (You can read the letter through a link in this Mondaq article, State Attorney Generals Challenge EEOC Criminal Background Check Lawsuits.)

We’re a long way from knowing how this is going to play out. In the meantime, however, our country’s Attorney General, Eric Holder, has announced a policy change that could take care of some of the problem for future generations. He announced that the federal government will take steps to get out from under lengthy mandatory minimum sentences for drug offenses, to reduce the incarceration rate and to make alternatives, such as treatment programs, available to offenders. (The sentencing laws remain on the books; the administration’s strategy for avoiding them includes not listing drug quantities, which trigger the mandatory sentences, in indictments of lower level offenders.)