EEOC Getting Pushback on Its Criminal Background Checks Policy. Can We or Can’t We?

For more than a year, the Equal Employment Opportunity Commission has pushed employers to stop using background checks – which the agency says unfairly discriminate against minorities – to screen job candidates. Now judges and state officials have begun to push back.

Here’s a roundup of recent updates on challenges to the EEOC’s policy against criminal background checks in the hiring process:

Use of Criminal Background Checks Upheld by Federal Judge (Barger & Wolen):

“In a rebuke to the Obama Administration, a federal judge has held that an employer may use criminal history as a hiring criterion without violating a job applicant’s civil rights. The case, EEOC v. Freeman, centers around a recent Equal Employment Opportunity Commission policy that employers may run afoul of the Civil Rights Act of 1964 by conducting criminal background checks. As we have reported, the EEOC maintains that such checks have a disproportionate adverse impact on minorities.” Read on>>

Maryland Court Rejects EEOC Challenge To Criminal Background Checks (BakerHostetler):

“The court described the case as ‘a theory in search of facts to support it.’ Further, it went on to comment negatively on the EEOC’s decision even to bring the litigation. […] The court’s careful analysis and common sense are refreshing, and opinions such as these will hopefully deter plaintiffs and the EEOC from bringing broad-based disparate impact attacks on background check policies.” Read on>>

EEOC Background Check Bias Class Action Dismissed (Poyner Spruill):

“The Freeman opinion highlights the benefit of adopting carefully crafted, multi-faceted hiring policies governing the use of criminal and credit histories. The court dismissed the putative class action against Freeman due to the EEOC’s failure to adequately attack the company’s detailed background investigation policy. Specifically, the court noted that the EEOC failed to establish an element of its case when it made no effort to break down Freeman’s multi-step background investigation policy to identify the specific policies and practices that caused the alleged disparate impact.” Read on>>

Court Slams EEOC on Background Check Lawsuit (BakerHostetler):

“As the Freeman court noted, this case is one of several brought by the EEOC challenging employer usage of background checks – similar cases have been filed against retailer Dollar General Corp. and automobile manufacturer BMW. This aggressive litigation strategy dovetails with the agency’s April 2012 guidance on criminal background checks. It is clear that the EEOC is attempting to severely limit, if not eliminate, the use of criminal and credit histories by private employers because the agency believes that such histories unfairly impact minorities due to various societal conditions (e.g., higher incarceration rates among African-Americans).” Read on>>

EEOC Taking Flak on Criminal Background Check Agenda (Gray Plant Mooty):

“Last week, attorneys general of nine states signed a five page letter addressed to the Equal Employment Opportunity Commission. The letter sharply criticizes the EEOC’s guidance related to employers’ use of criminal background checks, and calls the EEOC’s position ‘misguided’ and a ‘gross federal overreach.’” Read on>>

State Attorney Generals Challenge EEOC Criminal Background Check Lawsuits (BakerHostetler):

“The Attorney Generals’ letter to the EEOC contends that the EEOC is improperly attempting to expand Title VII coverage to ‘former criminals’, a group that Title VII is not intended to cover; [and that] the EEOC is improperly intruding into states’ rights and jeopardizing the enforcement of state laws that disqualify those with specific convictions from a variety of occupations (such as emergency dispatch personnel or pain management clinic employees) based on the convictions alone.” Read on>>


Read additional updates on Criminal Background Checks at JD Supra Law News>>