The EEOC recently announced guidelines prohibiting hiring practices that discriminate against job applicants with criminal backgrounds. These new guidelines focus on disparate treatment and disparate impact–two forms of discrimination that are said to violate Title VII. Accordingly, a company risks being sued by minority applicants for anything in the hiring process that involves the screening out of a protected class. From now on, any inquiries into an applicant’s criminal past must: 1) arise from business necessity, 2) relate to the position at hand, and 3) be administered consistently. The new EEOC policy has special resonance in the tri-state area, which tends to be sympathetic to this cause.  An article entitled “N.J. should ban arrests from job applications” appeared in New Jersey’s Star-Ledger the day the guidelines were announced. The Philadelphia Inquirer featured an article two days later on Capreece Lackey, a Philadelphia woman who had shared her story of arrest and joblessness the day the EEOC presented its guidelines.  (See  Philadelphia’s Mayor Nutter introduced a “Ban the Box” law in January prohibiting the use of criminal record checkboxes in job applications.

The Obama Justice Department has given the EEOC—which originally had no rule-making ability—the authority to dictate hiring practices. The idea of being forced to overlook criminality, in the name of non-discrimination, is disturbing. But even more disturbing is the double-bind of employer survival. Using background checks for protection may result in litigation; but skipping background checks to avoid litigation may bring criminal activity into the workplace.  In view of this difficult situation,

  • How can your company make safe and intelligent hiring decisions without violating the new guidelines?
  •  What steps need to be taken to modify your company’s current hiring procedures?
  • What can your company do to avoid (or, if necessary, handle) litigation?

Don’t be intimidated. If you have questions or have been threatened with a lawsuit regarding discriminatory hiring practices, it is best to consult an experienced labor and employement attorney.