The EEOC has been facing some controversy with regard to its April 2012 guidance on the use of criminal background checks, in which it discussed the appropriate use of criminal background information for employment purposes, which we discussed in a prior blog entry, “EEOC’s Updated Guidance on Arrests and Convictions.” It would help if the EEOC were consistent in its position.
As we previously discussed in “EEOC’s Own Use of Criminal Background Checks,” the EEOC sued an employer for using criminal background checks in EEOC v. Freeman. The employer in that case did not use a criminal record as an automatic bar to employment. Rather, it tailored the use of criminal checks to the particular job positions in question; certain job positions did not require a criminal check, while others did. As to the latter, only certain types of convictions were considered disqualifying. Nonetheless, and shockingly inconsistent with its own guidance, the EEOC claimed that the use of criminal checks at all had an illegal disparate impact on minorities.
Fortunately, the U.S. District Court for the District of Maryland, in a strongly worded opinion issued on August 9, 2013, rejected the EEOC’s position as overly broad, and found the employer’s tailored approach to be legitimate and appropriate. In a further slap to the EEOC, the Court noted that the EEOC itself uses criminal background checks in hiring.