EEOC Hearing On Employer Criminal Background Checks Portends Upcoming Changes To The Hiring Process

The EEOC will hold a public meeting on April 25 to discuss a common aspect of the hiring process – criminal background checks on applicants. This meeting follows one held by the EEOC last July and follows the EEOC's 2005 Informal Discussion Letter which stated that a “blanket policy” of refusing to hire because of criminal history violates Title VII by “disproportionately excluding members of certain racial or ethnic groups, unless the employer can demonstrate a business need for use of this criteria.”

The EEOC's focus on criminal background checks comes at a time when most employers are increasing their use of the checks. A 2010 survey by the Society for Human Resource Management found that 92% of employers use criminal background checks.

Most employers use these checks primarily out of safety and security concerns for their employees and customers. More frequently, however, employers are using the checks to screen out applicants who will be placed in positions with access to confidential information such as your personal financial information, social security numbers, credit card information, medical information, etc. – information which has been used in the ballooning crime of identity theft.

The EEOC's concern is that, while not intentionally discriminatory, the checks nevertheless have a discriminatory impact on minorities who are arrested and incarcerated at a rate disproportionate to whites. A 2006study in the University of Chicago's Journal of Law and Economics, however, found just the opposite – employers using criminal background checks were statistically more likely to hire minorities, presumably because they relied on the background checks to screen candidates and not racial or sexual stereotyping.

Nevertheless, the EEOC has sued employers – including the U.S. Census Bureau - using this theory. The EEOC recently announced the recovery of $3.13 million from Pepsi Beverages using this theory.

Historically, the EEOC has used these meetings as a precursor to issuing new regulations. Stay tuned.