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The Background on Employee Background Checks

Hiring and firing employees generally involves some risk of litigation, even under the best of circumstances.  Employers may consider using background checks to help mitigate some of this risk. In fact, many employers have increased their use of criminal record information in connection with making employment decisions. According to one survey, 92% of responding employers stated that they subjected some or all of their job candidates to criminal background checks. Some employers may be surprised to learn that taking what seems to be an obvious preventive action could result in scrutiny by the Equal Employment Opportunity Commission (“EEOC”), which could lead to litigation by the EEOC or adversely affected job candidates.

Nothing in Title VII of the Civil Rights Act of 1964, as amended (“Title VII”), or the Kentucky Civil Rights Act specifically prohibits employers from checking applicants’ or employees’ criminal histories or using the information discovered in connection with making employment decisions. If those results are used in a manner that is discriminatory based on any category protected by Title VII, however, then a violation may occur.  According to the EEOC, arrest and incarceration rates are especially high for African American and Hispanic men. Thus, to the extent employers engage in adverse employment actions based on criminal records, race discrimination claims constitute the most likely risk of potential liability.

Reflecting its heightened concern in the use of criminal background checks, the EEOC has issued three Guidelines on this subject since 1987.  The most recent Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, as amended, can be found at www.eeoc.gov. Although these Guidelines do not have the force of law, the EEOC’s opinions do provide employers with information that should be considered when using or considering the use of criminal background checks. For example, according to the EEOC:

  • Arrest records do not establish criminal conduct. Thus, an adverse employment decision based solely on an arrest record may serve as the underlying basis for a successful Title VII claim.
  • A policy or practice that excludes everyone with a criminal record from employment will not be considered job-related or consistent with business necessity, and may violate the law if found to create a disparate impact on a protected class (such as African-American or Hispanics). According to the EEOC, three factors should be considered in determining if an exclusion is job-related for the position in question and is consistent with business necessity:
    • The nature and gravity of the offense or conduct.
    • The time that has passed since the offense or conduct, or the completion of the sentence.
    • The nature of the job held or sought.
  • Federal laws and regulations that restrict or prohibit employing individuals with certain criminal records may provide a defense to a Title VII claim.

In order to avoid undue scrutiny by the EEOC, as well as reduce potential liability from lawsuits asserting claims of discrimination, employers should review and eliminate policies or practices that exclude applicants based solely on the fact that they have a criminal record. A more prudent practice would be to identify the requirements and circumstances applicable to each specific job or job classification, and determine what criminal offenses may demonstrate lack of fitness for that job. In each case of considering an applicant with a criminal background, an individualized assessment should be conducted to determine if that applicant should be excluded based on his or her offense.  Employers should always train managers, hiring officials and decision makers on how to implement policies and procedures to be consistent with Title VII and Kentucky law. Finally, employers should be sure to enforce policies to keep information about applicants’ and employees’ criminal records confidential.

For more information on background checks and other employment-related risks in hiring and firing, visit www.bgdlegal.com to download the e-book, How to Avoid Pitfalls in Hiring and Firing in Kentucky.

  • Partner

    Phil is a partner and former co-chair of the Labor and Employment Department. He represents employers in defending against employment-related claims in both federal and state courts. He represents clients involving covenants not ...

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