This an opportune time for employers to re-evaluate their background check practices. On April 25, 2012, the EEOC issued an updated Enforcement Guidance to employers on how to properly consider job applicants’ criminal histories under Title VII of the Civil Rights Act of 1964 (Title VII). The revamped guidelines reinforce the EEOC’s long-held position that employers’ reliance on applicants’ criminal background information may have a disparate impact on individuals because of their race or national origin, thereby violating Title VII. The EEOC’s Enforcement Guidance contains some best practice recommendations for employers, such as: eliminating blanket policies or practices that automatically exclude individuals from employment based on any criminal record. In addition, recent Fair Credit Reporting Act (FCRA) class action cases highlight the need for close attention to the manner in which employers obtain consent from employees prior to initiating a background check. The FCRA requires that employers notify individuals of their intent to obtain a background report on a form that consists “solely” of that notice.
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