James Dale and Karin Jones Discuss Avoiding Potential Pitfalls Regarding the EEOC's Guidance on Background Checks

Partner James Dale and associate Karin Jones authored an article in the Idaho Business Review titled “Don’t let the EEOC’s guidance on background checks put your company in hot water.” The article discusses how a business’s strict criminal background check policy with regard to potential employees may run afoul of federal law by discriminating against job applicants on the basis of protected characteristics, including race.

A 2012 Enforcement Guidance issued by the Equal Employment Opportunity Commission (EEOC) suggests that although nearly every background check may have a disparate effect on a given protected class of people, not all violate Title VII of the Civil Rights Act. Further, employers may conduct background checks for use in hiring decisions under limited circumstances, specifically situations where the decision relates to the position in question and is consistent with business necessity.

The authors outline steps employers can take if they choose to enact a criminal background check policy, while noting that even with these steps, there is no guarantee the EEOC won’t find and prosecute alleged violations of Title VII. They conclude that even though states differ in their requirements for criminal background checks, the EEOC has taken the position that Title VII preempts each state’s approach, and strict laws in a given state may not immunize employers there from prosecution under Title VII.

Read “Don’t let the EEOC’s guidance on background checks put your company in hot water,” published May 19, 2014. (Subscription required.)