Professional Service Agreement

EEOC Consent Decree Reminds Employers to Tread Carefully When Using Criminal Background Checks in Hiring Decisions

January 23, 2017

A recent consent decree between the U.S. Equal Employment Opportunity Commission (EEOC) and a southeastern Pennsylvania company is a reminder for employers to keep employment records regarding the use of criminal background information in hiring decisions.

A janitorial and facilities management company admitted it had used criminal history background assessments in their hiring decisions. However, it hadn’t kept adequate records on the impact those assessments had on applicants’ race, sex, or ethnic groups. The EEOC claimed that failure violated Title VII of the Civil Rights Act, as well as the Uniform Guidelines on Employee Selection Procedures (UGESP).

After the federal court ruled that UGESP’s record-keeping requirement is not permissive, but mandatory and enforceable in a court of law, the two sides entered into a four-year consent decree and agreed to settle the case. The EEOC stated, “Employers should take note that if they choose to rely on a selection procedure such as criminal background screening, they are required to create and maintain records that allow an assessment of whether the selection procedure has a disparate impact based on race, national origin or sex."

This case marks a trend in recent litigation against employers that use criminal background history in the hiring process—or engage third parties to screen out applicants with a criminal background. Companies recently have become embroiled in class action litigation over the failure to provide required disclosures and the impact that screening practices have on minority and female applicants.

For employers choosing to use criminal background history information as part of the hiring process, the EEOC’s victory and consent decree in this case underscore waiting until later in the interview process to consider criminal background history, when an individualized assessment of the job relatedness and business necessity of a candidate’s criminal history can be made, and the information required under the record keeping requirement can be gathered. This individualized assessment should consider: the nature and gravity of the offense or conduct; the time that has passed since the offense, conduct or completion of the sentence; and the nature of the job held or sought.