Conducting criminal background checks is becoming routine in the hiring process of new employees. Many employers see them as one way to vette potential candidates, and reduce the pool of job applicants. Yet, automatically excluding a job applicant because of a criminal history may subject an employer to a disparate treatment claim brought by the EEOC.

Last week, the EEOC issued a helpful guide for employers called Enforcement Guidance of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964. Employers should be aware there are two ways in which an employer’s use of criminal history information may violate Title VII (“disparate treatment discrimination”).

  • First, Title VII prohibits employers from treating job applicants with the same criminal records differently because of their race, color, religion, sex, or national origin. 
  •  Second, even where employers apply criminal record exclusions uniformly, the exclusions may still operate to disproportionately and unjustifiably exclude people of a particular race or national origin (“disparate impact discrimination”). If the employer does not show that such an exclusion is “job related and consistent with business necessity” for the position in question, the exclusion is unlawful under Title VII.

(A short question and answer guide was also issued, by the EEOC which summarizes the major points.)

Minnesota employers should also be aware of state statutes which relate to criminal history checks. Minn. Stat. 181.981 applies to private sector employers. It is designed to encourage the hiring of ex-offenders by limiting the parties ability in negligent hiring and retention cases, from introducing evidence relating to an employee’s past criminal history, when the job duties of the position did not expose co-workers or the public to any heightened risk of harm.

In the case of public employers, Minn. Stat. 364.021 prohibits most public employers from making inquiry about the criminal history of a job candidate, until the applicant has been selected for an interview. This of course does not apply where the public employer has a statutory duty to conduct a criminal history background on a job candidate such as corrections or law enforcement.

Hiring decisions have the potential for being scrutinized. As such, they should be carefully planned and if a criminal history is utilized, it should be reviewed to insure compliance with the most recent EEOC guidance.