Yesterday, the Equal Employment Opportunity Commission voted 4-1 to adopt a new policy regarding employers' use of criminal background checks in hiring. The policy is controversial because it has been interpreted by business groups to limit a common screening tool for applicants. The EEOC said that 65 million Americans have criminal histories, and that background checks often result in these persons having difficulty obtaining employment.

The EEOC stated that such policies can violate Title VII because they have a disparate impact against minorities. For example, African-American and Hispanic men have significantly higher criminal conviction rates than Whites. The EEOC analyzed this issue using traditional disparate impact standards. If the neutral criminal background check policy has a disparate impact against a protected minority group, the employer must demonstrate business necessity to justify its use.

In the criminal background context, business necessity requires that the employer demonstrate three factors: (1) the nature and gravity of the offense; (2) the amount of time since the conviction; and (3) the relationship between the offense and the job that is being sought. This analysis will vary depending on the particulars of the criminal background and the specific duties of the job. It would require notice to the applicant in many cases, and an opportunity for the applicant to explain why the conviction should not exclude them from the job.

The EEOC declined employers' request that it initiate a rulemaking process for these standards. However, the agency did not go as far as feared by some employers, and generally repeated existing standards for disparate impact discrimination claims. The new policy also did not deal with the contentious issue of credit checks in hiring, although the same disparate impact principles should apply to that analysis.

Any employer using background checks should document and be prepared to articulate the business justification for any exclusions in their particular job context. The attention paid by the EEOC to this issue indicates an intent to scrutinize employers' hiring practices, and to bring enforcement actions in situations where the checks appear unjustified by business needs