Retail Industry Update – June 2012: Using Conviction Records as a Screening Tool

Many retailers believe that the best means of preventing internal theft is to hire honest employees who do not steal. Common sense dictates that applicants who have been convicted of crimes are less likely to be honest and more likely to steal. Even though this practice is facially race neutral, the resulting “adverse impact” makes the practice unlawful under Title VII – unless the employer can prove the practice is job related and “consistent with business necessity.” The U.S. Equal Employment Opportunity Commission (EEOC) recently issued updated guidance on the use of criminal background checks in employment. The guidance suggests employers should individually analyze each hiring decision based on an individual’s criminal history. In the meantime, employers must decide whether the risks of lawsuits and defending a common sense understanding of human behavior is outweighed by the risks of increased theft from hiring more convicted criminals.

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