EEOC Chair Says Criminal Background Checks by Employers Not Banned

In a letter to the Wall Street Journal responding to the June 15, 2013 article ‘Banning Background Checks,’ Jacqueline A. Berrien, Chair of the U.S. Equal Employment Opportunity Commission (EEOC), denied the article’s suggestion that the EEOC believes criminal background checks by employers are “racist” and that the agency wants to ban the practice. The letter to the Wall Street Journal from Chair Berrien is available at http://online.wsj.com/article/SB10001424127887323893504578555722405188406.html.

The letter from EEOC Chair Berrien titled ‘We Don’t Ban Background Checks’ reads as follows:

Your editorial ‘Banning Background Checks’ (June 15) suggests that the U.S. Equal Employment Opportunity Commission (EEOC) believes that criminal background checks are “racist.”

This claim is wrong.

Neither Title VII of the Civil Rights Act of 1964 nor the EEOC prohibit employers from conducting background checks. Employers are also free to use background checks in making employment decisions, subject to the express long-standing, well-established requirement of Title VII that, where they do use such information and it has a disparate impact against a protected group, it must be related to the job in question and consistent with business necessity.

The EEOC’s position in these cases is neither unprecedented nor novel. In 1987, under then-Chairman Clarence Thomas, during the Reagan administration, the EEOC issued guidance to employers that use background checks about how to do so lawfully in accordance with Title VII. Guidance on the subject was also issued in 1990 under Chairman Evan Kemp, during the George H.W. Bush administration. Last year, the commission updated the guidance; however, it by no means marks a sea change in EEOC practice or policy.

Our lawsuits against BMW and Dollar General do not challenge the employers’ decisions to conduct background checks. They instead challenge screening processes that have a disproportionate impact on African Americans and that the commission believes are not job related and consistent with business necessity. Finally, both the updated EEOC guidance on employers’ consideration of arrest and conviction records and approval to file these cases received bipartisan support in the commission.

Jacqueline A. Berrien

Chair U.S. Equal Employment Opportunity Commission

Washington

The June 15, 2013 Wall Street Journal article ‘Banning Background Checks’ that Chair Berrien was responding to in her letter is available at http://online.wsj.com/article/SB10001424127887324688404578543824103846736.html.

As reported previously by ESR News, the EEOC filed lawsuits against two employers – a U.S. unit of German auto maker BMW and discount retailer Dollar General Corp. – alleging they violated Title VII of the Civil Rights Act by implementing and utilizing a criminal background check policy that resulted in employees being fired or screened out for employment. A press release from the EEOC about the lawsuits – the first enforcement action against employers under revised EEOC Guidance for criminal records – is available at http://www.eeoc.gov/eeoc/newsroom/release/6-11-13.cfm.

The two lawsuits filed by the EEOC – the agency enforcing federal laws prohibiting employment discrimination – show the Commission is starting to enforce its updated ‘Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964’ issued on April 25, 2012. The updated EEOC enforcement guidance for employers using criminal records is available at http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm.

In another Wall Street Journal article ‘Employment Checks Fuel Race Complaints,’ Attorney Lester Rosen, Founder and CEO of background check company Employment Screening Resources® (ESR), stated the EEOC has been delivering the same message to employers since the 1980s: “Criminal records need to be used carefully, not with brute force, more as a surgical instrument.” The article, which catalogues the increased scrutiny of background checks by the EEOC, is available at http://online.wsj.com/article/SB10001424127887323495604578539283518855020.html.

To help employers understand how to properly use criminal records, Rosen has written a complimentary whitepaper titled ‘Practical Steps Employers Can Take to Comply with New EEOC Criminal Record Guidance’ available to employers by emailing EEOCwhitepaper@esrcheck.com. Employment Screening Resources® (ESR) – ‘The Background Check Authority®’ – is a nationwide screening provider accredited by the National Association of Professional Background Screeners (NAPBS®). For more information, call toll free 888.999.4474 or visit http://www.esrcheck.com.

Sources:

http://online.wsj.com/article/SB10001424127887323893504578555722405188406.html

http://online.wsj.com/article/SB10001424127887324688404578543824103846736.html

http://online.wsj.com/article/SB10001424127887323495604578539283518855020.html

http://www.esrcheck.com/wordpress/2013/06/12/equal-employment-opportunity-commission-files-lawsuits-against-two-employers-for-use-of-criminal-background-checks/

About Employment Screening Resources® (ESR):

Founded by safe hiring expert Attorney Les Rosen in 1997, Employment Screening Resources® (ESR) – ‘The Background Check Authority®’– provides accurate and actionable information that empowers employers to make informed hiring decisions for the benefit of their organizations, employees, and the public. CEO Rosen literally wrote the book on background checks with “The Safe Hiring Manual” and ESR is accredited by The National Association of Professional Background Screeners (NAPBS), a distinction held by a small percent of screening firms. Employers choosing ESR know they have selected an agency meeting the highest industry standards. To learn more about ESR, visit http://www.esrcheck.com or call toll free 888.999.4474.

About ESR News: 

The Employment Screening Resources® (ESR) News blog – ESR News – provides employment screening information for employers, recruiters, and jobseekers on a variety of topics including credit reports, criminal records, data privacy, discrimination, E-Verify, jobs reports, legal updates, negligent hiring, workplace violence, and use of search engines and social network sites for background checks. For more information about ESR News or to send comments or questions, please email ESR News Editor Thomas Ahearn at tahearn@esrcheck.com. To subscribe to the ESR News Blog Feed, visit http://www.esrcheck.com/wordpress/feed/. To subscribe to the complimentary ESRcheck Report monthly newsletter, please visit http://www.esrcheck.com/Newsletter/.