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Insight EEOC Responds to Attorneys General’s Criticisms of Its Criminal Background Guidance

In a previous post, I discussed developments concerning the EEOC’s guidance regarding the use of criminal background checks in employment. The post discussed a letter written by the attorneys general from nine states attacking the EEOC’s guidance.

The Chair of the EEOC, Jacqueline A. Berrien, has responded to the AGs. Not surprisingly, Berrien has a more positive view of the guidance. And she did not leave open the possibility that the EEOC will reconsider the guidance, as urged by the AGs. Click here to read the response.

Berrien did clarify, however, a few points about the Guidance. First, individualized assessments of applicants and employees are required only for those who are screened out after a “targeted screen” and not for all applicants and employees. Second, Berrien explained that in some situations, an individualized assessment may not be necessary—even for the persons who are screened out. However, she also stated that an individual assessment “is a safeguard that can help an employer avoid liability when it cannot demonstrate that using only its targeted screen would always be job related and consistent with business necessity.” Thus, the EEOC believes that an employer will be better off by conducting individual assessments than by not doing so.

If you have questions regarding the use of criminal background checks in your employment, please contact a member of our employment group or call 208.344.6000.

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