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FAQ On Criminal Background Checks and Employment Discrimination

above-the-bar-logo.jpgFAQ: I own a construction business and have a blanket policy to not hire any job applicants who have an arrest or conviction record. Can I be sued for employment discrimination?

Yes. You are treading on very thin ice and can potentially be held liable for discrimination under Title VII of the Civil Rights Act of 1964. The Equal Employment Opportunity Commission (“EEOC”) just issued an updated Enforcement Guidance on the use of arrest and convictions by employers in making employment decisions. The Guidance sets forth the EEOC’s enforcement agenda regarding “disparate impact” claims of race and national origin discrimination and should therefore be seriously taken into account when using criminal records to make job decisions.

If you are using arrest and conviction records to screen out job applicants or make other employment decisions, rejected applicants may potentially hold you liable for discrimination under the theories of disparate treatment and disparate impact. A claim for disparate treatment can occur if you intentionally treat an employee differently because of his or her protected classification such as race or national origin. For example, if you reject an African American applicant for a position based on his or her criminal record but hire a similar White applicant with a comparable criminal record, this could amount to a claim for intentional disparate treatment.

A claim for disparate impact is different in the sense that it does not require evidence of discriminatory intent. You can be liable even if you are using a neutral practice or policy that you are applying to everyone but it has the effect of treating individuals in a protected category disproportionately. According to the EEOC, “national data supports a finding that criminal record exclusions have a disparate impact based on race and national origin . . .African Americans and Hispanics are incarcerated at rates disproportionate to their numbers in the general population.” Therefore, even if you apply your policy of excluding everyone with a criminal history to all applicants, the EEOC may still find that your policy is illegal if it results in a disproportionate number of African Americans or Hispanic applicants being rejected.

The EEOC advises that you should not apply a blanket rule to exclude every job applicant who has a criminal record. Instead, make individual determinations based on the applicant’s circumstances. For example, if the nature and gravity of the criminal offense was very serious and caused great harm, then excluding the applicant may be appropriate. Also consider how long ago the arrest or conviction took place. If the applicant committed the crime many years ago while he or she was a youth and has since held several jobs without incident, then the criminal record should not be as relevant as a recent conviction may be. Lastly, consider the type of job being applied for. For example, it may be reasonable to hire an alcoholic convicted of a DWI as a shoe salesman but certainly not as a bartender.

If you do decide to exclude an applicant based on his or her prior arrest or conviction, give the applicant an opportunity to explain the circumstances involving the criminal history. For example, you might learn that the individual was under duress and had a good reason for the crime or was falsely convicted. Most importantly, use your common sense and don’t rush to judgment to exclude any applicants without making an informed decision.
Our attorneys can help you make sure your employment practices are not in violation of any state or federal laws. We have conducted hundreds of training seminars as well as put policies and procedures in place to support employment decisions. Call our Employment Discrimination Attorneys at Villanueva & Sanchala at (800) 893-9645 to help your company avoid any potential litigation.


Thank you for visiting our Blog. This blog provides general information and thoughts about various employment law issues primarily in the New York Tri-State area and occasionally in other areas. You are welcome to read the posts. However, do not construe any content on this blog as legal advice or the creation of an attorney-client relationship. Again, we provide the content only for informational purposes. You should not make decisions based information on our blog since the application of the law depends on the facts and each situation may be different. In addition, the law in most jurisdictions is different and changes constantly and we make no representations that any information on our blog has been updated. The Blog should not be used as a substitute for competent legal advice from an experienced employment law attorney in your state or jurisdiction.

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