This year, the Equal Employment Opportunity Commission (“EEOC”) issued enforcement guidance on the use of arrest and conviction records in employment decisions. The EEOC warns employers that considering an applicant’s criminal records could lead to disparate treatment or disparate impact claims. In a disparate treatment case, the employee would have to show that the employer treated people in different protected classes (like those of different races) differently when considering criminal records. An example of this would be an employer running a criminal background check only on non-White applicants. In disparate impact claims, the employer’s neutral policy toward all applicants would have to show that it has a disproportionately negative effect on people in a particular protected class (i.e., a person of a specific race).
The EEOC also understands that in some situations and for certain types of jobs, a criminal background check might be necessary. The EEOC suggests that employers use a three factor test to distinguish between those who pose an unacceptable risk and those who do not. The employer should consider the nature and gravity of the criminal offense or conduct, how much time has passed since the offense or sentence, and the nature of the job. Even if this test indicates that the applicant may pose a risk, the employer should allow the applicant an opportunity to provide information that would show that he or she shouldn’t be excluded from having the job.
If you have questions about how your criminal background might affect you, contact the law firm of Wilhelm & Roemersma to speak with one of our experienced attorneys.
THE FOREGOING IS INTENDED TO BE A GENERAL DISCUSSION OF THE LAW AND IS NOT INTENDED TO BE CONSTRUED AS LEGAL ADVICE. IF YOU HAVE A SPECIFIC QUESTION, PLEASE CONTACT OUR OFFICE AND SPEAK WITH AN ATTORNEY.