Will the EEOC Treat You Like A Criminal For Asking About Criminal Records?

A few practical ruminations….

Many of us remain a bit surprised that even the EEOC has so many problems with employers refusing to hire applicants with criminal records. certainly there are problems, but do the inquiries really warrant class action-type focus?

Regardless of our opinions, the EEOC is pursuing expensive systemic investigations about such employer decisions . . . and it usually starts with a single individual’s EEOC charge. To oversimplify, the EEOC determines that the requirement has an adverse impact against a group, and then challenges the necessity of the standard.

Here are a few “practical” observations from our Columbia attorney, Matt Korn, and me.

The most common problems we have encountered with criminal background screens are:

(1) screening for convictions that are not job-related (as an example, the EEOC objects to exclusion of employees for conviction for child pornography when the employee will not have access to a computer or deal with children);
(2) screening for convictions without a time limitation (e.g., all felonies for violent crimes, not matter how old);
(3) screening for arrests or currently pending charges without investigating the underlying facts; and
(4) not providing an opportunity for individualized review.

The EEOC requires employers to review (1) the nature of the crime (e.g., violent, theft-related, etc.); (2) the amount of time since the conviction; and (3) the nature of the job held or sought.


Ideally, we would be able to look at the job description for each position and tailor the screen to the duties of each particular job. For employees who will be working closely with other employees or the public, violent crimes are likely job-related. For employees with access to personal or confidential information, or valuable inventory, theft-related crimes are likely job-related. For an employee who works in a warehouse, DWI/DUI or related offenses may not be job-related, unless the employee drives a company vehicle or part of their responsibilities include driving for work. As to child pornography and similar convictions, we would suggest that there are numerous reasons for exclusion based on the requirements of many jobs. It may not matter to the EEOC leadership, but it is hard to imagine decent investigators and judges harshly treating employers on this one … just speculating.

The length of time is trickier, because the EEOC provides no guidance in this area. What we attempt to do is to determine a time period that protects the Company from negligent hiring/retention/supervision claims and also is not too long to violate the EEOC’s guidance. We often recommend 7 years for felonies, and 3 years for misdemeanors. This is the time since the release from prison, if applicable.

The EEOC cautions against using arrest records for screening purposes, as people are arrested all the time without cause. Therefore, if an employer wants to consider arrest records, they have to make some kind of inquiry into the circumstances leading to the arrest. If the underlying facts demonstrate that the individual has done something that could put the Company at risk, then the exclusion would be justified. However, this approach takes more than just looking at the arrest record and may not be practical for all employers.

Individualized Assessment

Finally, employers should be making an individualized assessment. Generally, we recommend providing the applicant/employee with an opportunity to explain the conviction record before disqualification. If the applicant/employee provides sufficient information that mitigates the offense (e.g., worked successfully for a competitor without incident), then the Company may decide to hire the applicant/retain the employee. However, these types of “waivers” should be tracked carefully to avoid disparate treatment claims.

Matt Korn’s article, “By The Way, Are You A Criminal?” provides more detail.

Howard & Matt

About mavity2012

I am a Senior Partner operating out of the Atlanta office of Fisher & Phillips LLP, one of the Nation’s oldest and largest management employment and labor firms. My practice is national and keeps me on the road or in one of our 28 offices about 50 percent of the time. I created and co-chair the Firm's Workplace Safety and Catastrophe Management Practice Group. I have almost 29 years of experience as a labor lawyer, but rely even more heavily on the experience I gained in working in my family's various businesses, and through dealing with practical client issues. Employers tell me that they seldom meet an attorney who delivers on his promise to provide practical guidance and to be a business partner. As a result, some executives probably use different terms than “practical” to describe my fellow travelers in the profession. I don't enjoy the luxury of being impractical because I spend much of my time on shop floors and construction sites dealing with safety, union and related issues which are driven by real world processes and the need to protect and get the most out of one's most important business assets ... its employees. That's one of the reasons that I view safety compliance as a way to also manage problem employees, reduce litigation and develop the type of work environment that makes unions unnecessary. Starting out dealing with union-management challenges and a stint in the NLRB have better equipped me to see the interrelationship of legal and workplace factors. I am proud also of my experience at Fisher & Phillips, where providing “practical advice” is second only to legal excellence among the Firm’s values. Our website lists me as having provided counsel for over 225 occasions of union activity, guided unionized companies, and as having managed approximately 450 OSHA fatality cases in construction and general industry, ranging from dust explosions to building collapses, in virtually every state. I have coordinated complex inspections involving multi-employer sites, corporate-wide compliance, and issues involving criminal referral. As a full labor lawyer, I oversee audits of corporate labor, HR, and safety compliance. I have responded to virtually every type of day-to-day workplace inquiry, and have handled cases before the EEOC, OFCCP, NLRB, and numerous other state and federal agencies. At F & P, all of us seek to spot issues and then rely upon attorneys in the Firm who concentrate on those areas. No tunnel vision. I teach or speak around 50 times per year to business associations, bar and professional groups, and to individual businesses. I serve on safety committees at three states’ AGC Chapters, teach at the AGC ASMTC
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