In 2012, the Equal Employment Opportunity Commission issued guidance for employers on use of criminal background checks in hiring and other contexts. The EEOC expressed concern that employer policies that automatically exclude applicants based on prior convictions could result in a disparate impact against members of protected minority classes who are arrested and convicted at higher rates than non-minorities.

The guidance advised employers to make individualized decisions about disqualification based on criminal history using three factors: how much time has passed since the conviction, the seriousness of the crime, and the connection between the crime and the applicant’s job duties. If the employer failed to provide such business reasons for its decisions, it could be subject to claims of disparate impact discrimination against minority candidates.

Last week, the EEOC proposed revocation of the 2012 guidance. This move follows the EEOC’s decision last year to cease investigating or pursuing disparate impact claims in general. The commission has taken the position that absent evidence of intent to discriminate, neutral employer policies that have a statistically adverse impact on persons in protected classifications do not violate federal civil rights laws.

If the guidance is rescinded, employers could reimpose blanket disqualifications of applicants who have been convicted of a crime. An applicant who believes they are adversely affected by this policy due to race or sex could not expect the EEOC to investigate or prosecute such a claim. However, the U.S. Supreme Court has recognized disparate impact as a viable legal theory for pursuing claims under Title VII and related laws. Plaintiffs could still sue under this theory and seek damages and injunctive relief based on such exclusionary policies.

Due to this possibility, employers may be better served by continuing to individually review applicant and criminal backgrounds and to make and document decisions that tie the conviction to their specific business circumstances. While a blanket disqualification policy may be easier to implement, it can result in discrimination claims and lawsuits.

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