Two recently filed lawsuits by the EEOC alleging that employers’ criminal-conviction policies resulted in race discrimination are a recent reminder that using a one-size-fits-all approach to criminal backgrounds is risky. The EEOC’s basic allegation is that the employers’ facially-neutral policies violated federal discrimination law because the policies excluded more minority candidates based on their disproportionately higher rate of arrests and convictions. Their position is that the use of criminal-background information should be used to exclude applicants and employees only if the employer conducts an individualized assessment of the information gathered. That individual assessment should include: consideration of the nature and gravity of the crimes, the age of the convictions, and the nature of the applicant’s or employee’s position. The same rationale applies to credit checks. To ensure that your hiring and screening practices are appropriately tailored, are based on sound reasoning, and are able to survive claims of discrimination from the EEOC, individual litigants, and potential class-action claims, ask yourself: Is all available information equally relevant?; Do you have valid reasons to conduct background checks?; and Are you making tailored assessments of unsuitability?
