|Update on the EEOC’s View of the Use of Criminal Records
“I guess he was in the bar when a fight broke out or something like that. He wasn’t charged with a crime or convicted of anything, but the police did arrest him. Too bad—I think he’s the person we’ve been looking to hire.”
When an applicant discloses an arrest on a job application or a record of an arrest appears on the applicant’s background check, a potential employer is sometimes not quite sure what the best response is for the situation. The employer may be disappointed and not want to lose the opportunity to hire a new, promising employee. An organization that does proceed to hire the applicant has to do so while weighing the possibility of a negligent hiring claim in the future if it misjudges the applicant. If, however, the arrest is a problem for the employer and the applicant will not be hired, the employer will want to avoid creating discrimination liability when the organization rejects the applicant because of an arrest record.
The Equal Employment Opportunity Commission (EEOC) has not issued an official policy statement regarding employer use of criminal records under Title VII of the Civil Rights Act of 1964 since February of 1987. http://www.eeoc.gov/policy/docs/convict1.html
However, the EEOC recently met to discuss the topic of applicants with arrest and conviction records. No official policy statement update has yet emerged; however, after the meeting, the EEOC issued a letter to the Peace Corps. The Corps had requested clarification as to asking about criminal records on a proposed application it uses for engaging its volunteers. Although the letter response to the Peace Corps is not an official policy statement by the EEOC, it is instructive to employers. www.eeoc.gov/eeoc/foia/letters/2011/title_vii_criminal_record_peace_corps_application.html.
From the EEOC’s comments to the Peace Corps, we can learn several things applicable to other employers as well:
Use of criminal records by employers can lead to other liabilities. There has been a recent increase in the number of class action lawsuits filed against employers based on use of criminal records in employment decisions in violation of the federal Fair Credit Reporting Act (FCRA) and states’ fair employment and fair credit reporting laws. Employers would be wise to consult counsel before rejecting an applicant on the basis of an arrest or conviction.