The EEOC recently has stepped up enforcement against employers who use criminal background checks to screen potential employees. The agency contends that policies that exclude applicants with criminal records violate Title VII because they have a disparate impact on blacks and Hispanics, as InsideCounsel reported in April.

But employers say they are caught in a Catch-22, citing their obligation under OSHA’s general duty clause to provide a safe workplace and their liability for negligent hiring claims following incidents of violence or harassment.

Negligent hiring and negligent supervision claims arise when an employer knows or should have known of an employee’s potential to be a threat to other people. According to Clint Robison, a partner at Hinshaw & Culbertson, employers lose negligent hiring cases 75 percent of the time, and the average settlement of such claims is $1 million.

“It only takes one unfortunate incident in the workplace, whether it is a sexual assault or an employee unloading with the gun. The first that the victim’s counsel will do is to get information on the perpetrator,” says Teresa Jakubowski, a partner at Barnes & Thornburg. “The argument the employer will face is, ‘If you had done a criminal background check, you would have discovered that this person has a history of violent offenses. If you had been doing your job, you would not have hired this person and my client would not have been injured.’”

Jakubowski says that the reality is usually more complicated. She points out that it is easy to reject an applicant with repeated convictions, but much more difficult to assess whether an employee with one conviction 15 years earlier poses any threat. She thinks clearer definition is needed about where employers can draw the line on hiring people with criminal records without risking a discrimination claim.

“What tends to happen is that when a report comes back clean, it’s easy, and when it comes back peppered with convictions, it’s easy,” she says. “But employers live in the gray area in between and don’t have clear guidance [from the EEOC] on what they can use as disqualifying information.”