Last year, the Equal Employment Opportunity Commission ("EEOC") took significant measures to curb employer use of criminal background checks in hiring decisions by issuing new restrictive guidelines for employers.  The EEOC’s guidelines can be accessed at the following link:  The fundamental, underlying premise for the guidance is the EEOC’s belief that use of criminal history records will disproportionately disqualify black employment applicants; that is, have an adverse impact against them.  In what could be interpreted as test cases, the EEOC recently filed two separate, well-publicized federal lawsuits against retail store chain Dollar General Corp. and automaker BMW Manufacturing Company, alleging that their use of criminal history records in employee selection constituted discrimination in violation of Title VII of the Civil Rights Act of 1964.

Although separately filed, the federal court lawsuits similarly attack employers who revoked job offers to otherwise qualified applicants based on the applicants’ respective criminal histories.  In both lawsuits, the EEOC alleges that each company’s criminal convictions policy fails to sufficiently assess an applicant’s individual circumstances as they relate to the criminal conviction and the work to be performed - an assessment  required by  the EEOC’s guidance.  The EEOC contends that black job candidates are disqualified at a higher rate than non-blacks and that Dollar General’s and BMW’s use of criminal records thus has a discriminatory impact against black applicants.

Although it is no secret that the EEOC disfavors employers’ use of criminal background checks, these recent lawsuits serve as a wake-up call for employers who use criminal background checks to consider how they use the information in new employee selection.  To minimize the risk of litigation, employers should make sure that their use of criminal history records follows the EEOC guidelines and does not automatically result in candidate rejection for arrests or convictions.  An employer should not use criminal arrest as a selection criterion. To be disqualifying, a candidate’s criminal conviction record should be relevant to the job the employer seeks to fill.  The EEOC’s guidance goes far beyond relevance, however; the EEOC states that an employer should conduct an individualized assessment based on a number of factors, including, but not limited to, the following:

1)  The facts or circumstances surrounding the offense or conduct;

2) The number of offenses for which the individual was convicted;

3) Age at the time of conviction or release from prison;

4) Evidence that the individual performed the same type of work, post-conviction, with the same or a different employer, with no known incidents or criminal conduct;

5) The length and consistency of employment history before and after the offense or conduct;

6) Rehabilitation efforts, e.g., education and training;

7) Employment or character references and any other information regarding fitness for the particular position; and

8) Whether the individual is bonded under a federal, state, or local bonding program.

Many employers, particularly small employers, lack the time and money necessary to conduct the individualized analysis prescribed by the EEOC.  Many commentators have argued that the guidelines defy common sense.  It remains to be seen whether the judiciary will defer to or reject the EEOC’s guidance.

Obermayer attorneys are available to answer your questions and assist you in reviewing your hiring policies and other labor and employment issues.


The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.