On April 25, 2012, the U.S. Equal Employment Opportunity Commission (EEOC) issued an Enforcement Guidance regarding employers’ use of criminal background checks on employees and job applicants. While the Guidance does not significantly change the EEOC’s position, it does provide an opportunity to review your practices and procedures to make sure that you can withstand a challenge that your use of background checks is discriminatory. 

The EEOC’s Guidance, which can be found here, explains, in 55 pages, that the EEOC is updating and consolidating its thoughts on employers’ use of criminal background checks. The EEOC’s primary concern appears to be to address the adverse impact criminal background checks have on protected groups, specifically African Americans and Hispanics, who are convicted at a rate disproportionately greater than their representation in the population.

So, what’s an employer to do?

The Guidance suggests that employers eliminate policies or practices that exclude individuals from employment solely on their having any criminal record whatsoever. The Guidance also provides some practical steps employers can take to implement “best practices” when considering arrest and conviction records in making employment decisions:

  • Develop written policies and procedures for screening applicants and employees regarding criminal conduct;
  • Train managers, hiring officials, and decision makers on the new policies and procedures;
  • Limit inquiries regarding criminal records to those that are “job related for the position in question and consistent with business necessity”; and
  • Keep information regarding applicant and employee criminal records confidential.

The EEOC’s best practices are good suggestions. Consistently applying your written background check policies will often times be enough to defend against a claim that an applicant was discriminated against because of his race. So, when did you last update your written policy on background checks?