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With increasing frequency, employers are using criminal background checks as one tool in screening potential candidates for employment. Employers should understand, however, that the use of such background checks come with some complexity relating to Title VII racial discrimination prohibitions.

Although there are certainly circumstances where a criminal background check provides valuable information about potential employees, the Equal Employment Opportunities Commission (“EEOC”) has determined that the reliance on conviction records by employers may result in a disparate impact upon certain racial groups. The EEOC has noted in a recent report that “African Americans and Hispanics are arrested at a rate that is 2 to 3 times their proportion of the general population.” As such, the EEOC has warned that blanket employer refusals to hire applicants with any past criminal convictions may create a disparate impact on minorities and therefore constitute a violation of Title VII.

The EEOC, and some courts, have concluded that excluding an employment applicant on the basis of a criminal conviction must be both job-related and consistent with business necessity. The determination of excluding a candidate on the basis of past criminal convictions is best accomplished on an individual case-by-case basis. Among the factors the EEOC recommends employers consider in making this determination include:

  • The nature and gravity of the offense or conduct;
  • The time that has passed since the offense, conduct and/or completion of the sentence; and
  • The nature of the job held or sought.

Special attention is perhaps best spent on the last factor- the nature of the job held and sought. Employers should know that in the event where a prior conviction would have some bearing or create some risk in the event the candidate filled the position applied for, the employer may consider the past conviction in determining whether the candidate is a good fit for the job. For example, if a candidate was applying for a job as a comptroller, a prior conviction for embezzlement is likely a valid consideration in considering a candidate. However, if a candidate is applying for a job as a truck driver and was convicted of shoplifting 25 years ago, the employer would likely be best served from not immediately excluding that candidate on that basis alone.

Criminal background checks can be a valuable tool for mitigating risk in employment decisions. Nevertheless, employers are best served to evaluate each candidate’s criminal background on an individual basis and to consider whether a prior conviction would hinder an employee in performing the duties in the position being offered.