Idaho Law Blog
By Lane V. Erickson, Attorney
Many employers do not know or understand the laws that apply when it comes to hiring or choosing to not hire a prospective employee with a criminal record. Additionally, the amount of misinformation that exists and that people hear from well-meaning friends or unreliable sources on the internet only add to the confusion. Below are several myths that exist concerning whether or how employers can use criminal background checks in the employment process and actual facts to dispel those myths.
MYTH #1
- Myth: The EEOC Guidance prohibits employers from obtaining or using criminal records to screen its applicants and/or employees.
- Fact: The EEOC Guidance does not prohibit employers from obtaining or using criminal records to screen its applicants and/or employees. However, an employer cannot use this information in any way that intentionally or unintentionally results in discrimination.
MYTH #2
- Myth: The EEOC Guidance requires covered entities to hire or refer individuals with criminal records who are unsuitable for certain jobs.
- Fact: The EEOC Guidance does not require covered entities to hire or refer anyone. The Guidance does advise covered entities how they can avoid Title VII liability if they use applicants’ or employees’ criminal records to make employment decisions.
MYTH #3
- Myth: The EEOC Guidance imposes “new” Title VII requirements on covered entities
- Fact: Applying Title VII analysis to the use of criminal records in employment decisions is well-established.
- 1969: The EEOC began resolving charges involving the use of criminal records in employment decisions.
- 1970s: Federal courts began analyzing this issue using Title VII analysis.
- 1987, 1990: The EEOC issued three policy statements on this issue explaining the Title VII analysis.
The EEOC, as the federal agency that administers and enforces Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., has issued guidance on the use of arrest and conviction records in employment decisions. This guidance consolidates and updates the EEOC’s prior guidance regarding the use of criminal records in employment decisions.
As described in the Enforcement Guidance, the nondiscrimination principles of Title VII prohibit both “disparate treatment” – intentionally treating members of protected groups differently based on their protected status – and “disparate impact” – the use of policies or practices that are neutral on their face, but have a disproportionate impact on members of protected groups, and are not job-related and consistent with business necessity. It is important to note that although individuals with criminal history records are not a protected group under the applicable federal laws, antidiscrimination laws may be implicated when criminal records are being considered. For example, studies have shown that employers may treat whites with a criminal record more favorably than similarly-situated African Americans with the same or similar criminal record. Doing this is a form of disparate treatment and is prohibited.
If you are an employer and have questions about completing criminal background checks on your current or prospective employees, we can help you. Call us toll free at 877-232-6101 or 208-232-6101 for a consultation with Lane Erickson and the Racine Olson team of Employment Law attorneys in Idaho. You can also email Lane Erickson directly at lve@racinelaw.net. We will answer your Idaho Employment Law questions and will help you solve your Idaho Employment Law problems.
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