More On

EEOC Pressures Employers to Show Business Necessity of Rejecting Applicants Based on Criminal Records and Credit Scores

Online Exclusive: EEOC Focus On Criminal Background Checks Raises Negligent Hiring Concerns

In fall 2009, the Equal Employment Opportunity Commission (EEOC) accused Freeman, a convention and corporate events marketing company, of discriminating against blacks, Hispanics and males by routinely rejecting job applicants based on their criminal background records and credit histories. That violated Title VII, the agency said, because it had the effect of excluding minorities and males, who have disproportionately higher conviction rates and lower credit scores than the general population.

Others say the worldwide economic meltdown has victimized many people, leaving them with poor credit histories that unfairly limit their employment opportunities.

On the other hand, employers in this economy typically have plenty of qualified applicants for open positions. They assert their right to screen out people whose backgrounds raise questions about their dependability, temperament, judgment or trustworthiness. Some argue that there is a fundamental difference between discrimination based on a factor a person can't control--such as race, age and gender--versus discrimination based on something that is a matter of choice--committing a crime or spending beyond one's means.

"What we do know from the EEOC is that if an employer has an absolute or blanket rule that would preclude someone from being hired based on any conviction, that would be unlawful discrimination," says Teresa Jakubowski, a partner at Barnes & Thornburg. Beyond that, the EEOC isn't very specific about where discriminatory use of background checks starts and ends.

Ban the Box

Senior Editor

Mary Swanton

Bio and more articles

Join the Conversation

Advertisement. Closing in 15 seconds.