By Jonathan K. Driggs, Attorney at Law
In last month’s article, I introduced the topic of employers using criminal background checks (CBCs) to screen applicants. I mentioned that there is currently no federal or Utah law that directly prevents employers from using CBCs (but that the Fair Credit Reporting Act imposes certain notification requirements upon employers when using CBCs).
I then made a blatant attempt to manipulate you into reading this month’s installment by declaring that I would be either: 1) giving away a free trip to Disney World, OR 2) explaining how the Equal Employment Opportunity Commission (EEOC) is putting increased pressure on employers to use criminal background checks with greater discretion and restraint (c’mon, cut me some slack! You might feel a little desperate too if all you could ever write about was employment law!)
All I can say is that had I chosen to go with option 1, I’m certain you would have been the lucky winner (I had your name all picked out I swear… you were so close!) But, in all seriousness, let’s take a look at a subject that is becoming more serious and complicated for employers.
The EEOC does not have the authority to directly regulate when and how employers can use CBCs (and let me tell you, they would LOVE to have such authority!) The EEOC enforces anti-discrimination laws (e.g., race, sex, age, disability, etc.) So why does the EEOC think CBCs can create discrimination issues?
There are some very sobering and tragic statistics involving race and national origin regarding criminal convictions. In recent guidance issued by the EEOC, it states: “about 1 out of 17 White men are expected to serve time in prison during their lifetime, by contrast, this rate climbs to 1 in 6 for Hispanic men, and to 1 in 3 for African American men.” Under a legal theory called “disparate impact,” this means that if an employer is extensively using CBCs as a screening tool in its hiring process, a disproportionate number of racial minorities are effectively going to be screened out. (Note: there is also a “disparate treatment” theory involving CBCs in which a minority applicant shows that a non-minority applicant with a similar criminal history was not screened out).
The EEOC has a long-standing position that unnecessary use of CBCs in the hiring process can have a discriminatory effect. However, in a formal “Enforcement Guidance” statement issued by the EEOC on April 25, 2012, it is clear that the agency is stepping up its scrutiny of the use of CBCs by employers. The EEOC also further defined the steps it thinks employers need to take when using CBCs to avoid violating discrimination laws. While the “jury” is still out on the EEOC’s new Guidance (some experts think the EEOC has overstepped its authority—and the courts will eventually have the final say), the EEOC will be the first to handle such cases so their Guidance should be taken seriously.
It is important to understand that in the eyes of the EEOC, CBCs don’t just create discrimination issues regarding race and national origin. CBCs can cause gender discrimination concerns (men screened out more than women) or disability discrimination concerns (those with certain intellectual disabilities may have a higher likelihood of having criminal records). While implications related to race and national origin are most common, it’s important to understand that other protected classes may be involved as well.
Whether an employer has a right to use a CBC as a screening tool depends on whether it can show that its use of the tool was “job-related and consistent with business necessity.” Simply put, do legitimate, non-discriminatory reasons exist for the employer to use CBCs for that particular job? In the EEOC’s April 2012 Enforcement Guidance, the agency emphasizes that employers must consider the following factors when determining if the use of CBCs is “job-related and consistent with business necessity”:
- The nature and gravity of the offense or conduct;
- The time that has passed since the offense or conduct and/or completion of the sentence;
- The nature of the job held or sought.
In next month’s installment, we’ll discuss the steps that the EEOC expects employers to take when reviewing the above-listed factors (sorry, no phantom Disney World free trip offer this time!) For those who wish to read ahead, the EEOC’s Enforcement Guidance on CBCs can be found here: http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm CBCs are still an important tool that employers can—and in many instances should—use; they just need to be used with greater care and judgment.
This article should not be construed as legal advice. Copyright ©2013 by Jonathan K. Driggs, Attorney at Law, P.C. All rights reserved.
Jonathan K. Driggs is an employment law attorney with over 20 years of experience, including 3 years with the Utah Labor Commission. www.jkdlawpc.com
Jonathan’s popular “Employment Law for Managers Seminar” is being offered by the Mountainland Applied Technology College’s “Custom Fit Program” at significantly discounted rates for “for-profit” businesses (“Custom Fit Programs” are run by the state of Utah and use state funds to offset the cost of training programs for employers). The seminar will be held on March 26, 2013 at their campus at Thanksgiving Point in Lehi. For details and registration contact: Roger Rice (801) 753-4153 or email@example.com or click on this link for details: http://mlatc.edu/files/cf/current/ELMS.html