EEOC's background check guidelines shot down by federal appeals court

One of the Equal Employment Opportunity Commission's (EEOC) top priorities has been to stop employers from instituting blanket bans on hiring individuals with criminal records. The agency's focus stems from national data suggesting such bans have a disparate impact on minorities. In a somewhat long and winding road, its battle against criminal background checks led to a showdown with the state of Texas and a surprising decision by a federal appeals court.

EEOC's enforcement guidance

In April 2012, the EEOC issued its “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII,” referring to Title VII of the Civil Rights Act of 1964. The guidance declares a hiring policy or practice that “screens out a Title VII-protected group” is unlawful unless the employer can show it is “job related for the positions in question and consistent with business necessity.” In other words, you cannot have a blanket ban on hiring individuals with a criminal record.

The 52-page guidance urges employers to develop “targeted screen[ing]” and “individual assessment[s]” to determine whether making a hiring decision based on a candidate's criminal record is job-related and consistent with a business necessity. It further provides that all employers covered by Title VII “are subject to [its] analysis.”