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Are Criminal Background Checks Discriminatory?

The majority of employers will conduct a criminal background check on a potential hire before extending a job offer. However, in recent years, more and more cases have been won against employers by employees arguing that such checks are discriminatory and violative of Title VII of the Civil Rights Act of 1964. Employers are now somewhat more reluctant to use the checks, even as they argue that they should have a right to protect their business and their workers from potentially dangerous people.

Discrimination In Practice

Even if an employer is not consciously or openly discriminatory, it is still possible for them to discriminate in practice, especially when dealing with a characteristic that is not immutable (at least not until a certain point in life). However, it is both possible and common that some employers will use criminal background checks to discriminate either on the basis of race or national origin—for example, hiring a white male who has committed a certain offense, but denying a person of color with the same thing on his or her criminal record.

There are some exceptions under which refusing to hire based on criminal history is apropos, but an exception (that is, an instance of permitting an employer to discriminate based on criminal history) must meet the standard of being both “job related” and “consistent with business necessity.” Very few of these exist, but those exceptions that are permitted are generally those that are tailored to individual cases. A blanket policy of refusing to hire ex-convicts is much more likely to be struck down than an individual scenario involving a specific person and a specific offense.

Details and Exceptions

Guidance from the Equal Employment Opportunity Commission (EEOC) draws two important distinctions: first, that even if some criminal background checks are found to violate Title VII, there are certain exceptions, and second, there is a significant difference in making employment decisions based on conviction records versus making them based on arrest records. There is a burden that must be met, so to speak, before an employer is able to show that their use of background checks to exclude is acceptable under exceptions to the law.

Exceptions, as stated, must be job related and consistent with business necessity. However, they must also be well founded, based on concrete evidence. An arrest does not necessarily signify criminal conduct or untruthfulness (‘poor moral character’). To refuse to hire someone based solely on arrest records, as has been the practice in years past, is now generally considered discriminatory. Data shows that non-white people are disparately impacted in terms of criminal records, and this factor is only one of many that feeds into the requirement that refusing to hire someone must be based solely on their qualifications or lack thereof.

Ask An Employment Discrimination Attorney

If you are convicted of a crime and accept your sentence, you have discharged your debt, and more and more people are beginning to believe that it should not be held against you when you search for work. If you encounter discrimination, you may have legal recourse. It is a good idea to consult a knowledgeable attorney. The Charleston employment law firm of Hitchcock & Potts can help you evaluate your options.

Contact us today to set up an appointment.


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