EEOC Response to State Attorneys General Letter Regarding Criminal Employment Background Checks

The Equal Employment Opportunity Commission (EEOC) has responded to a recent letter sent from nine state Attorneys General asking the agency to reconsider its guidance on the use of criminal background checks conducted by potential employers.

The EEOC brought lawsuit against companies who used criminal background checks to deny employment. The agency contended that companies like Freeman Companies, a national events marketing organization, ”rejected job applicants based on their credit history and if they have had one or more of various types of criminal charges or convictions.” The guidance suggested “discrimination because the background checks allegedly had a disparate impact on minority applicants.”/p> 

In a letter that was just recently released to the public, the EEOC responded to the attorneys general about their concerns. The EEOC stated that the criticism is based on a “misunderstanding” of what the guidance suggests. The EEOC claimed that the guidance does not say it is illegal for employers to conduct or use the results of criminal background checks.  The EEOC continued that the guidance does not require individualized assessments in place of bright-line screens, but rather only encourages one be done if an applicant is screened out after an initial targeted screen is done. They contend that an individualized assessment is merely a safeguard that can help an employer avoid liability. Finally, the EEOC addressed concerns over the idea their guidance contradicted and subsequently superseded state and local hiring laws.  

The judge in the Freeman Companies case, U.S. District Court Judge Roger W. Titus decided against the EEOC and stated the following:

"Careful and appropriate use of criminal history information is an important, and in many cases essential, part of the employment process of employers throughout the United States. … (E)ven the EEOC conducts criminal background investigations as a condition of employment for all employees, and conducts credit background checks on approximately 90% of its positions. …

By bringing actions of this nature, the EEOC has placed many employers in the “Hobson’s choice” of ignoring criminal history and credit background, thus exposing themselves to potential liability for criminal and faudulent acts committed by employees, on the one hand, or incurring the wrath of the EEOC for having utilized information deemed fundamental by most employers.”