• Reevaluating Employment Background Checks after the EEOC’s Guidance
  • August 20, 2012 | Authors: Michelle Bergman; Sherril M. Colombo
  • Law Firms: Wilson Elser Moskowitz Edelman & Dicker LLP - McLean Office ; Wilson Elser Moskowitz Edelman & Dicker LLP - Miami Office
  • Employers’ use of background screening for job applicants should be reevaluated after the EEOC’s April 25, 2012, Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964. The Guidance provides that employers may violate Title VII if they treat criminal history information differently for applicants or employees. The EEOC noted that an employer’s facially neutral policy can adversely affect an employee or applicant with a criminal history and have a disparate impact based on prohibited characteristics, such as race and national origin. Per the EEOC’s Guidance, an employer cannot now simply reject an applicant because of his/her criminal record under an employer’s exclusionary policy. In the wake of the EEOC’s Guidance, employers using criminal background screening should now be prepared to prove a solid business reason (job necessity) for seeking the information.