EEOC Schedules Meeting on Use of Criminal Records for Employment Screening Background Checks on July 26

The Equal Employment Opportunity Commission (EEOC) – the agency of the United States Government that enforces the federal employment discrimination laws – will hold a meeting focusing on the use of criminal records for employment screening background checks on Tuesday, July 26, in Washington, D.C., according to the EEOC website.

The NAPBS, a non-profit trade association representing the interests of companies offering employment background screening, believes the July 26th meeting “could be a critical step in the Commission’s adoption of policies that could significantly impact how employers use criminal background checks for employment purposes.”

The NAPBS is joining together with other businesses and organizations “to share with the EEOC both how background checks enable employers to make more informed hiring decisions and the need for any forthcoming EEOC action to not hamper employers’ ability to conduct background checks to protect persons and property in the workplace.”

The full EEOC meeting will include all five Commissioners: Chairwoman Jacqueline Berrien, Commissioner Chai Feldblum, Commissioner Stuart Ishimaru, Commissioner Vicky Lipnic, and Commissioner Constance Barker. While a formal agenda has not yet been released, the NAPBS expects that multiple panels will include academics, lawyers, government officials, and people denied employment due to their criminal histories.

The NAPBS is also preparing comments to be submitted to the EEOC on the relevance and benefits of access to criminal history records by employers. The EEOC meeting on July 26 will be open to the public but will not be webcast or televised. A transcript will be available after the meeting. NAPBS members are encouraged to attend the meeting.

The EEOC currently has guidelines on how employers may use criminal records that makes the use of a blanket “no hire” policy that excludes job applicants with a criminal history unlawful under Title VII of the Civil Rights Act of 1964 since it discriminates against minority groups with higher rates of criminal convictions. Employers must also show that they considered the following three factors to determine whether a decision not to hire an applicant due to a criminal conviction was justified by business necessity:

  • The nature and gravity of the offense or offenses;
  • The time that has passed since the conviction or completion of the sentence, and;
  • The nature of the job held or sought.

As a background check provider accredited by the NAPBS, Employment Screening Resources (ESR) believes employers need to ensure compliance with federal, state, and city guidelines concerning the use of criminal records when performing employment screening background checks since a record number of jobseekers in the United States – nearly 65 million people, or over one in four U.S. adults – have criminal histories according to a March 2011 study by the National Employment Law Project (NELP).

“In our experience, employers have a high degree of awareness of the EEOC concerns about criminal records because of the background screening industry,” says Lester Rosen, founder and CEO of ESR and author of ‘The Safe Hiring Manual,’ the first comprehensive guide to pre-employment background checks. “As an industry, background screeners work with a high percentage of employers throughout America and educate them as to the EEOC guidelines on criminal records and business justification, and I am not certain the EEOC appreciates that background screeners have been one of the most effective means of employer education on the EEOC guidelines.”

Rosen claims that background screeners are not the employment police and their job is to help employers make informed and educated decisions. He is hopeful the EEOC will recognize the expertise and experience of the background screening industry, and will partner with the background screeners on this issue. In addition, Rosen is curious as to whether the EEOC – either in their Washington office or field offices – has hired any individuals with criminal records and had to go through the process private employers go through in balancing the various competing interests involved. “It is my hope the EEOC will lead by moral example and not just by rule making and lawsuits,” Rosen adds.
“The use of criminal records is a difficult issue because it involves important American values that can seem to conflict,” says Rosen. “On one hand, we value public safety and a safe workspace with honest and qualified employees. On the other hand, as a society we believe in second chances, and that a person’s past should not hold them back forever, particularly for more minor offenses. The issue is how to draw lines that both protect innocent people and, at the same time, does not burden the taxpayers by creating a permanent class of unemployed people. Unless an ex-offender can get a job, they cannot become a taxpaying and law abiding citizen and the taxpayers end up building more prisons then they do schools or hospitals, so it is a matter of finding a good balance.”

To learn more about background checks and the use of criminal records by employers, visit Employment Screening Resources (ESR) at

About Employment Screening Resources (ESR): Founded in 1997 in the San Francisco area with a mission to help employers and employees maintain safe workplaces, Employment Screening Resources (ESR) is accredited by The National Association of Professional Background Screeners (NAPBS®) and provides industry leading technology, legal compliance, service, turnaround, and accuracy. ESR also wrote the book on background checks with ‘The Safe Hiring Manual’ by founder and President Lester Rosen. For more information about ESR, visit

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