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Questioning Criminal Background Check Not Protected Activity Under Title VII

Last year, the EEOC issued an enforcement guidance cautioning employers about making employment decisions based on applicants’ criminal histories. The EEOC stated that decisions based on criminal backgrounds may have a disparate impact on minority candidates, and that employers need to make individual decisions based on the particular offense and its relevance to the job at hand. In a recent case, the Third Circuit Court of Appeals concluded that the mere act of engaging in criminal background checks of applicants does not violate Title VII. The case was filed by a HR manager who claimed that she was terminated in retaliation for complaining that two minority candidates for positions with the town were required to undergo criminal background checks. She alleged at the time that such searches violated their civil rights. The court concluded that the plaintiff never alleged any actual discrimination against the applicants and the mere act of requiring criminal background checks or using such backgrounds as part of the decision making process for candidates does not violate Title VII. Only the use of this information when applied to actual hiring decisions raises the possibility of discrimination under Title VII.

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