For the millions of Americans with criminal records, employment background checks often serve as a significant barrier to economic opportunity. In response to this widespread challenge, the Equal Employment Opportunity Commission (EEOC) issued landmark guidance in 2012 that continues to shape how employers should lawfully conduct criminal background checks in hiring and employment decisions.
At Nisar Law Group, we regularly help both employers and job applicants navigate these complex standards. Understanding the EEOC‘s approach is essential for creating fair hiring practices and protecting your rights in the employment process.
Disclaimer: This article provides general information for informational purposes only and should not be considered a substitute for legal advice. It is essential to consult with an experienced employment lawyer at our law firm to discuss the specific facts of your case and understand your legal rights and options. This information does not create an attorney-client relationship.
The Foundation: Title VII and Disparate Impact
The EEOC’s guidance is grounded in Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex, and national origin. While Title VII doesn’t explicitly mention criminal records, the EEOC’s enforcement approach focuses on how criminal background checks can create unlawful discrimination through “disparate impact.“
Disparate impact occurs when a seemingly neutral policy disproportionately affects members of a protected group. The EEOC’s guidance recognizes a critical reality: criminal record exclusions often have a disproportionate impact on certain racial groups, particularly Black and Hispanic job applicants, due to documented disparities in the criminal justice system.
National data consistently shows that Black and Hispanic Americans are arrested and convicted at rates disproportionate to their share of the general population. For example, while Black Americans make up approximately 13% of the U.S. population, they account for about 28% of all arrests and 38% of the incarcerated population. These disparities mean that policies excluding people with criminal records will often screen out a disproportionately higher percentage of Black and Hispanic applicants.
When a hiring policy creates this type of disparate impact, employers must demonstrate that the policy is “job-related and consistent with business necessity” to comply with Title VII. The EEOC guidance provides a framework for making this determination when using criminal records in employment decisions.
Core Requirements: Job-Related and Consistent with Business Necessity
For a criminal record exclusion to be lawful under the EEOC’s framework, employers must show that it is both job-related and consistent with business necessity. There are two primary ways employers can meet this standard:
Option 1: Validation
Employers can validate the criminal conduct exclusion for the position in question, similar to the way employers validate other employment selection procedures. This approach requires showing that specific criminal conduct empirically relates to subsequent work performance or behaviors.
Due to the difficulty in conducting formal validation studies for criminal conduct, this approach is rarely used in practice. Most employers instead rely on the second option, which involves individualized assessment.
Option 2: Targeted Screen with Individualized Assessment
The more common approach involves a two-step process:
Step 1: Develop a targeted screen that considers at least three factors:
- The nature and gravity of the offense or conduct
- The time elapsed since the offense, conduct, or completion of the sentence
- The nature of the job held or sought
This targeted screen creates an initial filter that links specific criminal conduct with the risks inherent in a particular position.
Step 2: Provide individualized assessment for those excluded by the screen to determine if the policy as applied is job-related and consistent with business necessity.
The individualized assessment should:
- Notify the individual that they may be excluded due to past criminal conduct
- Provide an opportunity for the individual to demonstrate the exclusion shouldn’t apply in their circumstances
- Consider whether additional information provided by the individual warrants an exception to the exclusion
The EEOC outlines several factors that may be relevant in this individualized assessment:
- Facts or circumstances surrounding the offense
- Number of offenses for which the individual was convicted
- Age at the time of conviction or release from prison
- Evidence of rehabilitation efforts (education, training, employment)
- Employment history before and after the offense
- Character references and other information regarding fitness for the position
- Whether the individual is bonded (i.e., considered low-risk by a bonding agency)
This individualized assessment approach recognizes that blanket exclusions based on any criminal history often go beyond what’s necessary for business purposes and can unfairly exclude qualified applicants.
Best Practices Under the EEOC Guidance
The EEOC guidance provides several best practices for employers to ensure compliance with Title VII when using criminal background checks:
1. Eliminate Blanket Exclusion Policies
Avoid policies that automatically exclude all applicants with any criminal history. These blanket exclusions almost never meet the “job-related and consistent with business necessity” standard and typically create legally indefensible disparate impact.
2. Develop Narrowly Tailored Screening Procedures
Criminal record screenings should be tailored to specific job requirements and risks. This means:
- Identifying specific criminal offenses that may demonstrate unfitness for specific jobs
- Determining appropriate time limits for considering past criminal conduct
- Including an individualized assessment process to evaluate additional information
For example, a financial institution might reasonably consider recent fraud-related convictions for positions with access to customer funds, but should likely not consider old, non-financial offenses unrelated to the job duties.
3. Limit Inquiries to Job-Related Convictions
The EEOC recommends that employers not ask about convictions that are unrelated to the job in question. Questions should be limited to convictions that have a direct relationship to the position.
4. Consider Time Elapsed and Rehabilitation
Research consistently shows that the risk of recidivism decreases substantially over time. The EEOC guidance emphasizes that employers should consider:
- The length of time since the offense occurred
- Whether the person has maintained a clean record since then
- Evidence of rehabilitation, including education and steady employment
After a certain period (often 7-10 years), most returning citizens present no higher risk than individuals without criminal records. Policies that fail to account for this diminishing relevance over time may be difficult to justify as business necessities.
5. Train Managers and Hiring Personnel
Anyone involved in the hiring process should receive proper training on:
- How to implement criminal background check policies consistently
- How to conduct individualized assessments fairly
- The requirements for maintaining confidentiality of criminal records
- The prohibition against using criminal history information in a discriminatory manner
Common Misconceptions About the EEOC Guidance
The EEOC guidance has sometimes been misunderstood or mischaracterized. Here are some important clarifications:
Misconception 1: The EEOC prohibits all criminal background checks
Reality: The guidance does not prohibit criminal background checks. It simply requires that they be job-related, consistent with business necessity, and conducted in a manner that doesn’t create unjustified disparate impact.
Misconception 2: Employers must hire applicants with criminal records
Reality: The guidance does not require hiring individuals with criminal records. It requires individualized assessment rather than blanket exclusions, but employers may still exclude individuals whose criminal history makes them unfit for a particular position.
Misconception 3: The EEOC requirements replace state and local laws
Reality: The guidance doesn’t override state or local laws requiring certain background checks. Employers must comply with applicable federal, state, and local requirements, though the EEOC notes that Title VII preempts state and local laws if they require or permit practices that would violate Title VII.
Misconception 4: Small businesses are exempt from these requirements
Reality: Title VII applies to employers with 15 or more employees, meaning smaller employers must also comply with these requirements if they meet the employee threshold.
Legal Challenges and Current Status
The EEOC’s approach to criminal background checks has faced legal challenges over the years. Most notably, in Texas v. EEOC, the State of Texas challenged the guidance, arguing that the EEOC exceeded its authority. While a district court initially enjoined enforcement of parts of the guidance against Texas, the Fifth Circuit ultimately vacated this injunction in 2019 on standing grounds without ruling on the merits.
Despite these challenges, the 2012 guidance remains in effect and continues to reflect the EEOC’s enforcement position. The guidance is also consistent with the EEOC’s longstanding approach to disparate impact analysis dating back to at least the 1970s.
Most importantly, the fundamental principles underlying the guidance—that criminal record exclusions must be job-related and consistent with business necessity when they create disparate impact—are firmly grounded in Supreme Court precedent interpreting Title VII, particularly Griggs v. Duke Power Co. and its progeny.
EEOC Enforcement Actions: Real-World Applications
To better understand how the EEOC applies its guidance in practice, it’s helpful to look at some of the enforcement actions the agency has pursued:
EEOC v. BMW Manufacturing Co.
The EEOC alleged that BMW’s criminal background check policy, which excluded individuals with certain criminal convictions regardless of when the convictions occurred or what the convictions were for, had a disparate impact on Black employees and applicants. The policy resulted in the termination of numerous employees who had worked at BMW for years through a contractor without incident.
The case settled for $1.6 million and policy changes including:
- Time limits on consideration of criminal convictions
- Individualized assessment of applicants with criminal records
- Clear and consistent standards for evaluating criminal history
EEOC v. Dolgencorp (Dollar General)
The EEOC challenged Dollar General’s policy of conditioning job offers on criminal background check results, alleging that the policy disproportionately screened out Black applicants. The company’s matrix categorically excluded applicants with certain convictions regardless of age of the conviction or job-relatedness.
This case settled for $6 million and significant policy changes to bring practices in line with the EEOC guidance.
These cases demonstrate that the EEOC is actively enforcing its guidance and that employers with rigid, blanket exclusion policies face significant legal and financial risk.
Practical Guidance for Employers
For employers seeking to comply with the EEOC guidance while maintaining appropriate screening procedures, here are practical steps to consider:
1. Review and Revise Existing Policies
Examine your current background check policies to ensure they:
- Consider the nature of the offense, time elapsed, and nature of the job
- Don’t impose blanket exclusions based on any criminal history
- Include a process for individualized assessment
- Document the justification for exclusions based on specific criminal conduct
2. Implement a Two-Stage Inquiry Process
Consider structuring your criminal background check process in two phases:
- First, evaluate candidates based on their qualifications without inquiring about criminal history
- Only after determining a candidate is otherwise qualified, conduct a targeted criminal background check
This approach, which aligns with “Ban the Box” laws in many jurisdictions, helps ensure that criminal history doesn’t unnecessarily exclude qualified candidates.
3. Develop Clear Assessment Guidelines
Create written guidelines for evaluating criminal history information that:
- Identify specific offenses that pose risks for particular positions
- Establish time limits for considering different types of offenses
- Outline the individualized assessment process
- Document the business necessity justification
4. Maintain Confidentiality
Establish protocols to ensure that criminal history information is:
- Accessible only to those with a need to know
- Stored securely and separately from general personnel records
- Used only for the purpose for which it was obtained
- Disposed of properly when no longer needed
5. Document Decision-Making
Maintain clear records of:
- How criminal history information was considered
- The specific job-related reasons for any exclusionary decision
- The individualized assessment process including information provided by the candidate
- The business necessity justification for the policy as applied
Guidance for Job Seekers with Criminal Records
If you’re a job seeker with a criminal record, understanding the EEOC guidance can help you navigate the application process more effectively:
Know Your Rights
Under the EEOC’s approach, employers should:
- Not automatically exclude you based on criminal history
- Consider the nature of the offense, time elapsed, and job-relatedness
- Provide you an opportunity to explain your circumstances
If you believe an employer has violated these principles, you may have grounds for an EEOC complaint.
Be Prepared for Individualized Assessment
When given the opportunity for individualized assessment, be ready to provide:
- Context around the offense (e.g., how long ago it occurred, circumstances)
- Evidence of rehabilitation (education, training, stable employment)
- Character references or other information showing your fitness for the position
- An explanation of why your criminal record shouldn’t disqualify you
Document the Process
Keep records of:
- When and how criminal history information was requested
- What specific policies the employer applied
- Whether you were given an opportunity for individualized assessment
- Any explanations provided by the employer for adverse decisions
This documentation may be crucial if you need to challenge discriminatory practices.
Consider Legal Assistance
If you believe you’ve experienced discrimination based on your criminal record that has a disparate impact based on race, national origin, or other protected characteristics, consider consulting with an employment attorney who can:
- Evaluate whether the EEOC guidance applies to your situation
- Help you understand if state or local laws provide additional protections
- Guide you through the EEOC complaint process if appropriate
- Advise you on other potential legal remedies
Harmonizing Different Legal Requirements
One of the challenges employers face is navigating the sometimes-competing requirements of different laws, including:
- Title VII and the EEOC guidance on disparate impact
- Fair Credit Reporting Act (FCRA) requirements for background checks
- State and local “Ban the Box” laws
- Industry-specific background check requirements
- State law restrictions on considering certain records
While these requirements may seem complex, they generally share a common theme: promoting fair evaluation of candidates based on job-related criteria rather than overbroad exclusions.
A comprehensive approach that incorporates individualized assessment, proper disclosure and authorization, and job-related standards will typically satisfy the requirements of all these laws while also leading to better hiring outcomes.
Conclusion: Toward Fair and Effective Hiring Practices
The EEOC’s guidance on criminal background checks represents an important framework for ensuring that employment screening practices do not unnecessarily restrict opportunity or create discriminatory barriers. By focusing on job-relatedness, business necessity, and individualized assessment, the guidance helps employers develop practices that both protect legitimate business interests and provide fair opportunities for qualified applicants with criminal histories.
For employers, following the EEOC guidance not only reduces legal risk but often leads to better hiring outcomes by ensuring that qualified candidates aren’t arbitrarily excluded based on past mistakes that pose no relevant risk to the business.
For job seekers with criminal records, the guidance provides important protections against overbroad exclusions and creates pathways to demonstrate rehabilitation and job readiness.
At Nisar Law Group, we assist both employers and job applicants in navigating these complex standards. If you have questions about criminal background checks and employment discrimination—whether as an employer developing compliant policies or a job seeker facing potential discrimination—contact us for a consultation to discuss your specific situation.
A fair chance at employment benefits everyone: individuals seeking to rebuild their lives, employers looking for qualified talent, and communities working toward greater economic inclusion and public safety.
