In 2012, the EEOC issued its new Guidance on the use of criminal records in employment decisions. It’s important to note that the Guidance is not legally binding and that the EEOC did not advise employers to eliminate criminal history in employment decisions.
However, the EEOC did provide several best practices and recommendations on the use of criminal records by employers. Specifically, the Guidance recommends employers weigh three factors when assessing whether the existence of a criminal record is sufficient for job exclusion: the nature and gravity of the offence or conduct, the time that has passed since the offence or conduct and the nature of the job held or sought. The EEOC further recommended in its Guidance that employers conduct “targeted assessments” and consider an “individualized assessment” where appropriate. This individualized assessment involves the employer speaking with the applicant, notifying him/her that he/she will not be considered for the position based on the criminal history and allowing the applicant to have the opportunity to explain and provide further information. Employers that have a federal law or regulatory requirement to exclude individuals based on particular criminal history may use that fact as a defense to a charge of discrimination. It is less clear whether reliance on a state law that requires exclusion of an individual is a sufficient defense.
Past EEOC Activity
Both before and after the issuance of its updated Guidance in 2012, the EEOC has pursued cases against employers. These cases all generally allege that the employer’s use of criminal (and sometimes credit) information leads to disparate impact discrimination which when a person “demonstrates an employer’s neutral policy or practice has the effect of disproportionately screening out a [protected] group” and does not connect the policy with job-relatedness or necessity. Essentially, the argument is that more minority individuals are arrested and have criminal records, so an employer automatically disqualifying individuals based on the criminal record history inevitably commits disparate impact discrimination from a racial perspective.
The EEOC has had a few settlements with employers in the past few years. For example, in July 2013, the EEOC announced a settlement with a trucking company following the filing of a lawsuit alleging the employer denied an African-American applicant for a trucking position based on the individual’s criminal history that the EEOC claimed was unrelated to the job position’s requirements. This employer will now have their hiring practices monitored for 5 years by the EEOC. More recently, in September 2015 the EEOC reached a $1.6 million settlement with BMW after filing suit in June 2013. The initial suit alleged BMW’s criminal background check policy disproportionately impacted African American applicants and employees without proof of a legitimate business need. BMW’s criminal history hiring policy had been in place since 1994 and did not include time limit restrictions in terms of how far back it would consider criminal history. In addition to the monetary settlement, BMW’s facility in Spartanburg County, South Carolina has EEOC oversight for 3 years and had to change its hiring practices.
However, the EEOC has also had some high-profile losses. These cases contain the common claim that the employer’s use of criminal history information in hiring decisions led to racial discrimination. In EEOC v. Freeman, the Fourth Circuit denied the EEOC’s appeal based on “an alarming number of errors and analytical fallacies” associated with expert testimony. Following that decision, Freeman was successful in obtaining almost $1 million in attorneys’ fees from the EEOC with the court issuing a blistering attack against the EEOC’s flawed expert testimony. In EEOC v. Kaplan, the Sixth Circuit denied EEOC appeal following suit “for using the same type of background check that the EEOC itself uses.” Notably, the court stated that the: “EEOC brought this case on the basis of a homemade methodology, crafted by a witness with no particular expertise to craft it, administered by persons with no particular expertise to administer it, tested by no one, and accepted only by the witness himself.”