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Now, More Than Ever: Make Sure Your Criminal Background Policy is "Individualized" Enough




by:
Ellen C. Kearns
Angela L. Rapko
Constangy, Brooks & Smith, LLP - Boston Office

 
July 4, 2013

Previously published on June 28, 2013

The recently announced class action filed by the U.S. Equal Employment Opportunity Commission against Dollar General highlights the importance for employers of making sure that they don't act too "automatically" in rejecting applicants or terminating current employees based on criminal convictions.

In its June 11 press release announcing the lawsuit, the EEOC alleged that the retail chain's policy of conditioning job offers on criminal background checks had a disparate impact on African-American applicants and employees. According to the EEOC's complaint, Dollar General, which considered convictions for the past 10 years, revoked an offer of employment after a woman disclosed that she had a six-year-old conviction for possession of a controlled substance. In addition, an employee was allegedly discharged after her background check revealed a felony conviction, even though she allegedly informed her store manager that the report was in error.

As we reported in April 2012, the EEOC issued an Enforcement Guidance entitled Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964. The Enforcement Guidance explains that African-American and Hispanic men are convicted of crimes more frequently than men in other racial or ethnic groups, or women of any race or ethnic background. Therefore, an employer may be liable for violating Title VII even if its policy requires criminal background checks of all applicants, offerees, or employees, without regard to race or sex. If the effect of such a neutral policy is to exclude members of certain protected groups, and if the employer cannot make a showing that the policy or practice is job-related and consistent with business necessity, then the employer could be liable for discrimination under a disparate impact theory.

According to the EEOC, criminal background policies should take into account the following:

  • The nature and gravity of the offense or conduct;
  • The time that has passed since the offense or conduct, or completion of the sentence; and
  • The nature of the position held or applied for.

The EEOC recommends that employers make individualized assessments of criminal background information, instead of blanket exclusions for certain convictions. The following factors are relevant to an individualized assessment:

  • The facts or circumstances surrounding the offense or conduct;
  • The number of offenses;
  • The person's age at the time of conviction or release from prison;
  • Evidence that the person performed the same type of work after the conviction without any known incidents of criminal conduct;
  • Employment history before and after the offense or conduct;
  • Rehabilitation efforts; and
  • References regarding fitness for the position.

Advice for Employers

Of course, the suit against Dollar General has just been filed, and the company has not yet had an opportunity to respond to the EEOC's allegations. However, there is no question that the EEOC is aggressively pursuing disparate impact claims against employers who use criminal backgrounds or credit histories as screening devices, so employers should be cautious.

Criminal history checks are recommended (and may be required by law) when employees have responsibility for handling valuable assets, have unsupervised contact with other employees or customers, or may be placed in safety-sensitive situations.

Before implementing a criminal background check policy, employers should carefully review the EEOC's Enforcement Guidance and seek legal advice to ensure that the policy will not unwittingly create Title VII liability. Employers should also be aware that states - for example, Massachusetts - may have their own specific requirements, as well.



 

The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.
 

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