EEOC and Criminal Background Checks

shari lane headshotby Shari Lane

On September 16, 2013, Aaron Alexis, a former Navy reservist, shot and killed twelve people in a Navy Yard, and wounded many others. Mr. Alexis had a criminal history and history of serious mental illness, and human resources staff may be wondering how Mr. Alexis slipped through the Navy’s background checks and screening by the federal defense contractor that subsequently hired him. Would a careful criminal background check have prevented these tragic events? Incidents like these may leave employers struggling with how to apply the EEOC’s Guidance on Criminal Background Checks—which disapproves the broad application of such background checks in hiring decisions—when the consequences of ignoring criminal history can be so dire.

On July 24, 2013, Attorneys General for nine states challenged the EEOC’s Guidance, asserting that the EEOC had impermissibly expanded Title VII, placing an insupportable burden on employers. The letter states: “We believe your policy guidance—and recently filed lawsuits—incorrectly apply the law. It defies common sense to suggest that a bright-line criminal conviction screen will rarely be ‘job related’ and ‘consistent with business necessity.’ An employer may have any number of business-driven reasons for not wanting to hire individuals convicted of rape, assault, child abuse, weapons violations, or murder – all crimes specifically mentioned in [your] complaint.”

The EEOC recently responded to the letter, stating that the Attorneys General misunderstood the Guidance. The Guidance does not simply prohibit “bright line screens,” the EEOC stated, but rather “encourages a two-step process, beginning with a “targeted screen” that considers “at least the nature of the crime, the time elapsed, and the nature of the job.” Next, the EEOC stated, employers must use an “individualized assessment” only for those applicants who are screened out, to “ensure that they are not mistakenly screening out qualified applicants or employees based on incorrect, incomplete, or irrelevant information, and for individuals to correct errors in their records.

In reality, it appears from the media stories that Mr. Alexis’ prior criminal activity and slide into psychosis were fairly recent, and it may well be that no criminal background check, no matter how thorough or how broad, would have prevented these events. It also may be that the EEOC’s Guidance, if properly implemented, would have appropriately screened out Mr. Alexis. For employers and those of us advising employers, only one thing is certain: hiring will continue to be complex and fraught with risks.

(By the way, if you missed HLGR’s seminar on the EEOC’s Guidance, contact us, and we’ll send you the materials.)