Recently, the Equal Employment Opportunity Commission issued an informal advisory letter serving as a reminder to employers of the proper role of criminal histories and convictions in employment screening. The EEOC monitors the exclusion of applicants due to a criminal history or background because the practice can lead to employment discrimination in violation of federal law.

Employers are free to consider an applicant’s criminal background during the hiring process. However, if an employer excludes applicants because they have criminal records and this practice disproportionately excludes African Americans, Hispanics, or other protected groups, the employer must show that these exclusions are job related and consistent with business necessity. If an employer’s applicant screening practices do not meet this standard, the practices may be found discriminatory and unlawful.

Employers must consider the nature of the job, the nature and type of offense for which the person was convicted, and how long ago the conviction occurred. A practice of not hiring anyone who was ever convicted of a crime will not meet this standard if it disproportionately excludes members of a protected class (e.g. African Americans, Hispanics). Ideally, employers should individually consider each application revealing a criminal conviction. However, if this is not practical, employers may apply a carefully-tailored rule to screen applicants who are likely to pose an unacceptable risk in particular positions.

Shortly after the general letter regarding criminal histories, the EEOC issued a second informal letter opinion addressing its previous opinion as it relates to the recently-enacted Secure and Fair Enforcement for Mortgage Licensing Act (SAFE Act) which requires an applicant to undergo a state and national criminal history background check to be eligible for license and registration. The EEOC was careful to note that, to the extent the two laws might be inconsistent, it did not trump the SAFE Act. However, it did counsel that employers subject to the SAFE Act still allow an applicant a reasonable opportunity to explain or dispute any information revealed in the criminal history.

Our employment group is always available for any questions or concerns regarding employment screening and the hiring process.

By Ken Short, kshort@dsda.com