James F. Mahoney, Attorney

May 2012

Criminal Background Checks and the Hiring Process

The EEOC issues guidelines for checking the criminal record of a prospective employee

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In light of employers’ increased access to criminal history information, review of case law analyzing Title VII requirements for criminal record exclusions, and other developments, the EEOC decided to update and consolidate all of its prior policy statements about Title VII and the use of criminal records in employment decisions. This new Enforcement Guidance supersedes the Commission’s previous policy statements as to its enforcement of the Civil Rights Act upon an employer’s consideration of arrest and conviction records in employment decisions.

First, realize that the fact of an arrest does not establish that criminal conduct has occurred, and exclusion based on an arrest, in itself, is not truly job related and is inconsistent with business necessity. However, an employer may make an employment decision based on the conduct underlying an arrest if the conduct makes the individual unfit for the position in question.

In contrast, a conviction record will usually serve as sufficient evidence that a person engaged in particular conduct. In certain circumstances, however, there may be reasons for an employer not to rely on the conviction record alone when making an employment decision. Records are often incorrect.

An employer is liable for violating Title VII when the plaintiff demonstrates that it treated him differently because of his race, national origin, or another protected basis. ”It shall be an unlawful employment practice for an employer— (1) fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.” 42 USC § 2000E-2.

The Civil Rights Act however doesn’t prevent employment discrimination in certain industries - transportation for one - where federal statutes and regulations govern eligibility for occupational licenses and registrations. Suppose a driver applies with you and mentions a criminal conviction as a teen for damaging school property. Despite that, he hires on with you for drayage driving and requires a TWIC card. Then he’s turned down by the TSA because of a permanently disqualifying criminal offense in his past related to that episode when he was a kid. You can reject his application and terminate him because you are being consistent with another federal law.

The following are examples of best practices for employers who are considering criminal record information when making employment decisions.


Eliminate company policy or practices that exclude applicants from employment because of any criminal record. Remind hiring managers about Title VII’s prohibition on employment discrimination.

Develop a Hiring Policy

Write a narrow policy and procedures for screening applicants and employees for criminal conduct, which identifies the essential job requirements and the actual circumstances under which the jobs are performed; decide the specific offenses that may demonstrate unfitness for performing driving jobs such as within 49 CFR 383.5 Definitions-Disqualifications and 49 USC 31310.

Identify the criminal offenses based on all available evidence and determine the duration of exclusions for the criminal conduct based on the available evidence; include an individual assessment of the applicant; record the justification for the policy and the procedures; note and keep a record of consultations and research considered in crafting the policy and procedures.

Questions about Criminal Records and Confidentiality

When asking questions about criminal records, limit inquiries to records for which exclusion would be job related for the position in question and consistent with business necessity. Keep information about applicants’ and employees’ criminal records confidential. Only use it for the purpose for which it was intended.