Tag Archives: conviction

Using Criminal Background Checks in the Hiring Process; Handle With Care

The Office of Legislative Research, whom I’ve praised in several posts before (here and here),recently issued a report on the consequences of a felony conviction on employment. 

Overall, it does a good job summarizing the issues when it comes to state employment.

But later on in the publication it states the following when discussing the federal restrictions on employer use of criminal background information:

Asking job applicants to indicate whether they have been convicted of a crime is permissible but Title VII of the Civil Rights Act of 1964 appears to restrict an employer’s ability to use criminal background information in the hiring process (42 USC. § 2000e, et seq.). The Equal Employment Opportunities Commission (EEOC), the federal agency that enforces Title VII, has decided that disqualifying people who have criminal records from jobs is discriminatory because the practice disproportionately affects African American and Hispanic men. (Those two groups generally have higher criminal conviction rates than do Caucasian men.)

The EEOC has ruled repeatedly that covered employers cannot simply bar felons from consideration, but must show that a conviction-based disqualification is justified by “business necessity.” The legal test requires employers to examine the (1) nature and gravity of the offense or offenses, (2) length of time since the conviction or completion of sentence, and (3) nature of the job held or sought. Under this test, employers must consider the job-relatedness of a conviction, the circumstances of the offense, and the number of offenses (EEOC Guidance 915.002, April 25, 2012:http://www.eeoc.gov/laws/guidance/upload/arrest_conviction.pdf).

Back in April, I discussed the EEOC’s latest guidance at length.  As a result, I think the OLR’s report has misstated the EEOC’s position and made it sound like the rules on criminal background check are set in stone at the federal level.  They are not.

criminal defense attorney goes to court to defend his clients against criminal accusations.

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