Employment / 1 min read
The Equal Employment Opportunity Commission (EEOC) recently said that criminal background checks should be conducted only after an employer makes a conditional job offer to an applicant. The statement came in a recent federal lawsuit filed against Sheetz, Inc., a large convenience store chain in the northeast. The EEOC warned that the results of criminal background checks should be part of an individualized assessment related to an applicant and should not result in an automatic decision against hiring any applicant. The EEOC maintains that criminal background screenings are more necessary and relevant for some positions than others.
In the lawsuit, the EEOC alleges that the convenience store chain violated federal law by denying employment to job applicants because of their race. The alleged race discrimination purportedly resulted in the defendant’s long-standing practice of screening all job applicants for criminal conviction and then denying employment based on any prior conviction. The EEOC contends that the defendant’s hiring practices disproportionately screened out applicants based on race.
Some state and local laws prevent private sector employers from asking applicants about their criminal history until after a conditional job offer is made. Federal contractors are required to follow this practice.
If there is no federal contract at issue and no applicable state law banning criminal background checks pre-offer (as is the case in Texas), the employer may lawfully ask about criminal history as part of the pre-offer application process. But if it does so, the employer should assess whether using criminal history to make hiring determinations disparately impacts applicants based on race. If a disparate impact is evident, the employer may be sued by the effected applicants or the EEOC even if no discriminatory intent is shown. Such a practice would be unlawful, though facially neutral based on race, if there is an alternative practice available that is comparably effective to achieve the employer’s goals but causes less discriminatory effect.
Given this stance by the EEOC, employers should carefully review their use of criminal background check policies with counsel.