EEOC Guidance emphasizes possible bias in blanket bans of job applicants with criminal pasts

The Equal Employment Opportunity Commission has published new guidance that illustrates why a blanket ban on hiring employees with criminal records could violate discrimination laws.

The guidance uses statistics to show how a blanket ban could have a disparate impact based on race and national origin. Such bans would violate Title VII, absent a showing by the employer that the exclusions are “job related and consistent with business necessity,” the guidance says. The New York Times and the National Law Journal have stories.

A recent survey cited by the guidance found that 92 percent of employers conduct criminal background checks on some or all of their job applicants.

According to the guidance, African Americans and Hispanics are arrested at a rate that is two to three times their proportion of the general population. If current incarceration rates remain unchanged, about one in 17 white men are expected to serve time in prison during their lifetimes, compared to one in six Hispanic men, and one in three African American men.

The biggest change in the new guidance is the EEOC recommendation that an “individualized assessment” can help employers avoid liability, according to The Workplace Class Action Blog. In a press release, Barry Harstein, co-chair of the hiring and background checks practice group at Littler Mendelson, also notes the “critical new focus” on individualized assessment.

The Lawyers’ Committee for Civil Rights Under Law applauded the new guidance, saying it will “greatly reduce the misuse of criminal history background checks to deny employment to persons of color.


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