EEOC’s Limits on Criminal Background Checks: Bad Policy Based on “Completely Unreliable” Data, in Washington Legal Foundation

Frank Morris, Jr., a Member of the Firm in the Labor and Employment, Litigation, and Employee Benefits practices, in the Washington, DC, office, and Brian Steinbach, a Senior Attorney in the Labor and Employment practice, in the Washington, DC, office, co-wrote an article titled "EEOC's Limits on Criminal Background Checks: Bad Policy Based on 'Completely Unreliable' Data."

Following is an excerpt:

In April 2012, the Equal Employment Opportunity Commission (EEOC) issued Enforcement Guidance on employers' use of criminal records in hiring and other employment decisions.1 This is part of a concerted EEOC effort to attack the use of criminal records in employment decision making—even though the Commission uses such records in its own hiring. The Guidance reflects the EEOC's belief that, simply because national statistics show higher arrest, conviction, and incarceration rates for certain racial minorities, a criminal record screening policy or practice likely has an unlawful disparate impact based on race or national origin.2 Thus, the Guidance requires an employer to demonstrate that, for positions in question, the policy or practice is "job related and consistent with business necessity." The EEOC's enforcement position unduly stretches the limits of its authority, presumes that it can establish that using criminal conviction records screening has a disparate impact, and imposes unwarranted burdens on employers, while creating unnecessary conflicts with state laws and risks to the public.