Blog Post #23: Prohibit Employers from Using Background Checks in Hiring Decisions

By Julia Parker

The use of background checks and conviction policies to eliminate potential employees from applicant pools is a contentious topic.[1] As a society, how can we expect individuals coming out of incarceration to become productive members of society if the conviction on their record stands as a barrier to gainful employment? On the flip side, how can we require employers to risk the success and safety of their businesses by hiring individuals with criminal records?

The Equal Opportunity Employment Commission (“EEOC”) has recently led an aggressive campaign against employers who use background checks to eliminate potential employees from applicant pools.[2] The organization argues that the use of background checks systematically discriminates against minorities and individuals of lower socioeconomic status.[3] The EEOC explains that the use of background checks is permissible if their use satisfies a “stated business necessity.”[4] This broad standard leaves ample room for interpretation. What satisfies a “stated business necessity” in the eyes of the EEOC? Ironically, the Commission uses criminal background checks in its own hiring process and this has become an issue in recent litigation.[5]

In the Commission’s most recent case against BMW, the organization claims BMW’s conviction policy discriminates against African Americans and does not satisfy a legitimate business necessity.[6] A central issue in this case is whether the EEOC should be forced to produce its own hiring policy as a part of discovery.[7] BMW argues that since the EEOC considers themselves the ultimate protectors of fairness in the workplace, its own conviction policy should provide quality evidence of what constitutes a reasonable policy.[8] The EEOC argues that its policy is irrelevant to the litigation, but the organization has failed to state why its use of background checks satisfies a “stated business necessity.”[9] It will certainly be interesting to see whether BMW or the EEOC prevails. Ideally, a clearer standard will emerge as to what constitutes a “stated business necessity.”

Through the passage of fair hiring legislation, local legislatures are also taking steps to limit the ability of employers to use background checks when screening potential employees.[10] In Maryland, Montgomery County, Prince George’s County, and Baltimore City have all recently passed legislation regulating employer use of background checks.[11]These local laws apply to businesses with 15 or more employees and often require that a conditional offer of employment be made before a background check can be conducted.[12] If an employer intends to rescind a conditional offer of employment after review of a background check, a copy of the background check specifying the disqualifying charge or conviction must be provided to the applicant.[13] Most of the pieces of legislation also provide for a formal complaint process if an individual feels an employer has committed a violation.[14] The local policies strike a balance between the interests of employers and job applicants.[15] The new laws attempt to curtail discrimination in preliminary hiring processes, while still permitting employers to protect their business interests.[16]

The efforts of the EEOC and the passage of local fair hiring laws are important steps toward protecting individuals from discrimination and breaking down re-entry barriers for individuals with criminal records.[17] If individuals are able to come out of incarceration and find a decent job, they are more likely to support their families financially and less likely to revert to criminal activity.[18] In turn, communities will begin to spend less money on law enforcement and welfare programs. [19]

[1] See Ban the Box: U.S. Cities, Counties, and States Adopt Fair Hiring Policies to Reduce Unfair Barriers to Employment of People with Criminal Records, National Employment Law Project,http://op.bna.com/dlrcases.nsf/id/cscz-9srn68/%24File/Ban-the-Box-Fair-Chance-State-and-Local-Guide.pdf (last visited Mar. 17, 2015) [hereinafterBan the Box].

[2] See EEOC, No. 915.002, Enforcement Guidance:  Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act of 1964 (2012), available athttp://www.eeoc.gov/laws/guidance/arrest_conviction.cfm.

[3] See id.

[4] See id.

[5] See id.

[6] See Scott Flaherty, BMW Renews Bid for Info on EEOC Background Check Policy, Law 360, http://www.law360.com/articles/590270/bmw-renews-bid-for-info-on-eeoc-background-check-policy (last visited Mar. 17, 2015).

[7] See id.

[8] See id.

[9] See id.

[10] See id.

[11] See Ban the Box, supra note 1.

[12] See Montgomery County Expedited Bill No. 36-14, National Employment Law Project,http://nelp.3cdn.net/444a5d0103e9652663_wum6becd4.pdf (last visited Mar. 17, 2015); see also Prince George’s County Council Bill No. CB-78-2014, National Employment Law Project, http://www.nelp.org/page/-/SCLP/2014/Guides/Prince-George-County-Oct-2014.pdf?nocdn=1 (last visited Mar. 17, 2015); see also City of Baltimore Council Bill 13-031, National Employment Law Project,http://www.nelp.org/page//SCLP/2014/Baltmore_Ordinance_2014.pdf (last visited Mar. 17, 2015).

[13] See id.

[14] See id.

[15] See id.

[16] See id.

[17] See Ban the Box, supra note 1.

[18] See id.

[19] See id.