On April 25, 2012, the Equal Employment Opportunity Commission (EEOC) issued its Enforcement Guidance No. 915.002, titled Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964. The Guidance was broadly understood to signal the EEOC’s intent to move aggressively to curb the ability of employers to base employment decisions on criminal history and as an invitation to the private plaintiffs’ bar to do the same. That understanding has proven to have been well-founded as the past 18 months have seen a number of high profile cases brought by the EEOC and private plaintiffs against employers such as BMW, Disney, Dollar General and others. At the same time, apparently unwilling to wait to be sued, the state of Texas sued the EEOC on Nov. 4, 2013, seeking a declaratory judgment that its policy of refusing to hire convicted felons for state positions does not violate Title VII.
This article will discuss employer use of criminal history information in the context of potential disparate impact theory discrimination claims under Title VII (and, at least in theory, state law analogs). It is important to recognize that potential discrimination claims are only one concern in this area. Two others can be equally important but are beyond the scope of this discussion. First, where the employer uses a third party to perform a criminal history, or any other sort of background, both the employer and the third party must comply with the requirements of the Fair Credit Reporting Act, 15 U.S.C. § 1681, et seq., particularly the obligation to provide the applicant or employee with notice of and an opportunity to challenge a background report. Second, many states and municipalities have specific restrictions on employer access to and use of criminal history information, including the increasingly popular “Ban-the-Box” ordinances which prohibit employers from asking about criminal history on an employment application, only permitting such an inquiry further on in the application process.