February 28, 2014
In a new analysis of the EEOC's guidance on criminal background checks, the U.S. Commission on Civil Rights agrees that there are significant problem areas for employers, but the Commissioners are split on whether the guidance is a positive development. The Commission, divided evenly between Republicans and Democrats, was unable to agree on findings or recommendations. However, all Commissioners agreed that because Title VII "does not distinguish between intentional and inadvertent actions ... an employer may make good-faith efforts to adhere to the [EEOC] guidance and still be in violation of the law." Moreover, "it leaves employers exposed to the discretionary judgment of the EEOC as to individual hiring decisions." Finally, the EEOC’s guidance recommends that all criminal background checks be followed by individualized assessments of the applicants, but does not indicate how they are to be conducted, "which potentially complicates the employer's efforts to comply." Nor does the guidance "address or acknowledge the practical difficulties of performing individualized assessments in large-scale hiring by an employer." Nevertheless, Commission Chairman Martin Castro expressed support for the guidance in the report noting it merely "sets forth reasonable guidelines on how criminal background checks should be used to minimize discriminatory impact on minorities."