In an effort to persuade employers to substantially curtail the use of applicants’ criminal backgrounds in the hiring process, the Equal Employment Opportunity Commission issued an enforcement guidance on April 25 calling into question an employment screening technique used by the vast majority of employers in the United States. Although the EEOC guidance largely reiterates positions that it has taken over the years regarding the impact that such criminal-history checks may have on minorities, the EEOC’s recommendations regarding the use of this information are more forceful than ever.
Few employers want to risk an EEOC investigation or lawsuits brought by groups of employees alleging that the employer’s policy on criminal-background checks is illegal. At the same time, employers are reluctant to give up criminal checks for fear that not doing them could create an unsafe working environment or lead to claims of “negligent hiring” should a person with a criminal background do something to harm a member of the public. It’s this “pick your poison” dilemma that has many employers wondering how they should proceed.
