Federal Government Clarifies How Employers May Use Job Applicants’ Criminal Background Information

Discrimination-Diversity-01.jpgThe Equal Employment Opportunity Commission (EEOC), the federal agency that enforces employment anti-discrimination laws, issued a revised set of guidelines for employers in late April regarding criminal background checks on job seekers. The EEOC addressed how employers can use information on job applicants’ prior arrests or convictions in making employment decisions without violating federal anti-discrimination statutes. New York and New Jersey small business owners may not fall under the jurisdiction of federal statutes if they have few employees, but the guidelines are important for all employers to understand. Employers of any size do well to abide by the spirit of the anti-discrimination statutes, even if they are not bound by the letter.

Title VII of the Civil Rights Act of 1964 governs many common aspects of anti-discrimination law. It prohibits discrimination in employment based on “race, color, religion, sex, or national origin.” Discrimination may include decisions related to hiring, firing, layoffs, promotions, salary or pay rate, raises, assignment of job duties, benefits, or any other “privilege of employment” based on these characteristics. For job applicants, the law prohibits employers from “fail[ing] or refus[ing] to hire” someone based on the person’s membership in a protected category. Employers, when interviewing prospective employees, may not ask certain questions pertaining to the protected categories. They must also exercise caution when investigating applicants’ backgrounds in order to avoid revelation of privileged information that could, however inadvertently, put the employer in violation of the statute.

Employers may request background information on a job applicant regarding criminal history. Title VII does not prevent employers from asking about arrests or convictions. Such inquiries may, however, lead an employer to information that, if it were to form the basis of an applicant’s rejection, would put the employer in the position of violating Title VII. This could expose the employer to liability to the applicant for a variety of damages, not to mention negative press and bad publicity.

A key consideration for the EEOC in investigating alleged Title VII violations is whether the complainant received “disparate treatment” based on a protected category. The EEOC looks at evidence of “stereotyped thinking” in reviewing claims of disparate treatment. It offers an example of two applicants for a job, one White and one African American, both of whom have single convictions for possessing and distributing marijuana as teens. After a background check, a representative for the employer approves one of them for an interview but denies the other based on criminal history and perceived identity as a “drug dealer.” While the representative may claim to have rejected one applicant based solely on the criminal conviction, the broader context reveals an inconsistent decision-making process and “stereotyped thinking,” leading to unlawful discrimination.

As with almost any type of information obtained from job applicants, employers must apply consistent standards in making hiring decisions. The EEOC, as well as state and municipal anti-discrimination agencies, will look beyond a single employment decision to review a business’ employment culture in assessing whether unlawful discrimination might have occurred.

The New York business attorneys at Samuel C. Berger, PC offer fixed-fee packages of legal services to businesses and entrepreneurs who want to do business in New York and northern New Jersey. To speak to a member of our skilled legal team, contact us today online or at (212) 380-8117.

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Photo credit: ‘Discrimination Diversity 01’ by Kurt Löwenstein Educational Center International Team from Germany (qe07 (16)) [CC-BY-2.0], via Wikimedia Commons.