New Jersey Employers Need To Be Aware of Discrimination Dangers in Using Background Checks for Hiring Decisions

What does an employer’s use of criminal history information in hiring decisions have to do with employment discrimination? The U.S. Equal Employment Opportunity Commission (EEOC) has determined that an employer’s use of an individual’s criminal history in making employment decisions could violate the prohibition against employment discrimination.

The situation has attracted attention from lawsuits involving an automobile manufacturer and a discount retailer who are alleged to have inappropriately used criminal background checks to deny employment to workers, resulting in discriminatory treatment. The lawsuits were brought under Title VII of the Civil Rights Act of 1964. Title VII is enforced by the EEOC and prohibits employment discrimination based on race, color, religion, sex and national origin.

The EEOC issued updated employment guidance to address findings that the application of criminal background checks for employment decisions results in a disparate impact based on race and national origin. African Americans and Hispanics are incarcerated at rates disproportionate to their numbers in the general population, indicating an increased potential for disparate impact, but employers can show in an EEOC investigation that their particular employment policy or practice does not cause a disparate impact on the protected group.

Courts look to the following types of evidence to determine whether an employer was motivated by race, national origin, or other protected characteristics when using criminal records in a selection decision:

• statements that are derogatory concerning the charging party’s protected group;
• evidence that the employer requested criminal history information more often for individuals certain racial or ethnic backgrounds or did not give equal opportunity to explain criminal history to all groups;
• treating a charging party differently from others not in the same protected group;
• results of matched-pair testing that show different treatment because of a protected status; and
• results of statistical analysis of applicant data, workforce data, or third party criminal background history data.

If you are an employer, you can protect yourself by developing a policy specific to the jobs for which you are hiring and by training those who hire to implement the policy appropriately. Specifically:

• Eliminate policies or practices that exclude people from employment based on any criminal record.
• Train managers, hiring officials, and decisionmakers about Title VII and its prohibition on employment discrimination.
• Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct.

Identify essential job requirements and the actual circumstances under which the jobs are performed.

Determine the specific offenses that may demonstrate unfitness for performing such jobs.

• Identify the criminal offenses based on all available evidence.

Determine the duration of exclusions for criminal conduct based on all available evidence.

• Include an individualized assessment.

  Record the justification for the policy and procedures.

  Note and keep a record of consultations and research considered in crafting the policy and procedures.

• Train managers, hiring officials, and decisionmakers on how to implement the policy and procedures consistent with Title VII.
• When asking questions about criminal records, limit inquiries to records for which exclusion would be job related for the position in question and consistent with business necessity.
• Keep information about applicants’ and employees’ criminal records confidential. Only use it for the purpose for which it was intended.

For the full text of the EEOC enforcement guidance, see here.

At McLaughlin & Nardi, LLC, our New Jersey employment attorneys provide legal services in developing employment contracts as well as in representing both employers and employees when employment issues arise. If you have an employment issue, please call us at (973) 890-0004 or e-mail us.