government affairs blog

Are Criminal Background Checks Legal?

Posted by Paul Fiore on June 17, 2013

The Equal Employment Opportunity Commission (EEOC) filed lawsuits last week against Dollar General Corp. and a BMW plant in South Carolina. The issue in the lawsuits is over both companies’ use of criminal background checks. So, the short answer is that criminal background checks are not, per se, illegal, but your employment practices could run afoul of the law if the results appear to discriminate (even indirectly) against minorities. In these cases mentioned, African-Americans were fired from their jobs or had job offers revoked in what the EEOC claims were disproportionate numbers, based on convictions found as part of a criminal background check. It should be noted that in both cases the companies vehemently denied that there was any race discrimination.

Behind these actions is the not very well-known release of the “EEOC Arrest and Conviction Criminal History Guidance”. This rulemaking (the process that fleshes out legislation into regulation) has come under fire for a lack of transparency, and at issue with many employers and federal legislators is the lack of a public comment period, which would allow for discussion of the effects on workplace and public safety by hindering the ability of employers to conduct criminal background checks.

In a June 11, 2013 Washington Post article on the EEOC lawsuits, several studies were cited that have investigated the effects of a criminal record on employment. One key finding was that “white offenders were only half as likely to get a callback from a potential employer and the effect was even greater for blacks”. While this kind of research may appear to fall in to the “obviously” category for many of you, there are very interesting issues at play here, and solid data enhances the debate over the issue that the National Employment Law Project puts succinctly, “Millions of Americans - one in four adults - have arrest or conviction records that often follow them throughout their lives.”

An EEOC spokesperson commenting on the lawsuits stated that “Overcoming barriers to employment is one of our strategic enforcement priorities. We hope that these lawsuits will further educate the public and the employer community on the appropriate use of conviction records.” Several states have recently enacted legislation that echoes this sentiment, and added new barriers to conducting criminal background checks.

The Post article also made note of a Society for Human Resource Management survey, which found that “more than two-thirds of companies conduct criminal background checks.” If you’re company is part of this apparent majority, perhaps you agree with the belief expressed in a recent business coalition letter sent in opposition to another state’s attempt at aforementioned legislation: “As long as there is workplace violence, fraud, theft, and a need to protect vulnerable populations, there will always be a need to review the criminal histories of applicants for certain positions.” Adding to any employers’ concerns is the simple truth that in the aftermath of any workplace violence, a lawyer will quickly file a lawsuit against the employer on any victim’s behalf.

This issue clearly will cause many to think about personal and professional stories of redemption where the journeys often begin with an employer giving an ex-offender their first break. That being said, it seems that this should be a personal decision by an employer with the job applicant’s full history at hand, and not one where the employer is blindsided by past histories that come back to roost.

Keywords: Labor