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New Developments in the Use of Arrest and Conviction Records in Hiring

By Hawley Troxell,

In April 2012, the Equal Employment Opportunity Commission (EEOC) issued guidance regarding the use of arrest and conviction records in the hiring process. The EEOC’s Guidance can be found here.

In the past few months, there have been additional developments regarding the Guidance:

First, signaling its intent to crack down on certain use of criminal history information by employers, in June 2013, the EEOC filed suit against two employers—BMW and Dollar General. In each case, the EEOC claims that the employers’ use of criminal background information violates Title VII of the Civil Rights Act. Click here for the EEOC’s press release about these lawsuits.

Second, at least some states have indicated disagreement with the EEOC’s position and have asked the EEOC to back down. In July 2013, the attorneys general from nine states wrote a letter to the EEOC urging it to dismiss the lawsuits against BMW and Dollar General and to rescind the Guidance. According to these attorneys general, the EEOC has gone too far: “We believe that these lawsuits and your application of the law, as articulated through your enforcement guidance, are misguided and a quintessential example of gross federal overreach.” The letter was signed by the attorneys general from Alabama, Colorado, Georgia, Kansas, Montana, Nebraska, South Carolina, Utah, and West Virginia.

And third, most recently on August 9, 2013, the district court for the District of Maryland dismissed an EEOC criminal-history case (EEOC v. Freeman). In dismissing the EEOC’s case, the district court commented on the EEOC’s attempt to limit the use of criminal history information in the employment context without more robust proof of discrimination:

The story of the present action has been that of a theory in search of facts to support it. But there are simply no facts here to support a theory of disparate impact resulting from any identified, specific practice of the Defendant.

Indeed, any rational employer in the United States should pause to consider the implications of actions of this nature brought based upon such inadequate data. By bringing actions of this nature, the EEOC has placed many employers in the “Hobson’s choice” of ignoring criminal history and credit background, thus exposing themselves to potential liability for criminal and fraudulent acts committed by employees, on the one hand, or incurring the wrath of the EEOC for having utilized information deemed fundamental by most employers. Something more, far more, than what is relied upon by the EEOC in this case must be utilized to justify a disparate impact claim based upon criminal history and credit checks. To require less, would be to condemn the use of common sense, and this is simply not what the discrimination laws of this country require.

It now remains to be seen what effect, if any, the push back from certain states and the recent Freeman decision will have on the EEOC’s attempts to attack and limit the use of criminal history information in the hiring process.

For more information about this topic or other employment matters, please contact a member of our employment group or call 208.344.6000.