Use of Criminal Background Checks in Hiring

In Oregon, it is legal to check an applicant’s criminal background before hiring, and in some situations, an employer can be liable for failing to do so.  However, employers also need to be careful not to let the use of criminal background checks disparately impact members of protected classes.   Yesterday, the EEOC filed lawsuits against BMW and Dollar General for violating Title VII through their use of criminal background checks on employees.  The EEOC alleged that BMW “disproportionally screened out African-Americans from jobs” by denying employment to individuals with criminal convictions, regardless of when the individual was convicted.  The EEOC alleged that this screening policy was not job related or consistent with business necessity.  In the EEOC’s suit against Dollar General, it alleged that a policy that conditioned all job offers on criminal background checks resulted in a disparate impact against African-Americans.   

Bottom line: a policy that requires criminal background checks and denies employment based on convictions for safety-sensitive jobs or jobs with significant public contact is likely legal.  However, for any job, employers should avoid a policy that categorically denies employment without any consideration of the nature and gravity of the underlying crime or the age of the conviction(s).  A summary of the EEOC’s lawsuits can be found here: http://eeoc.gov/eeoc/newsroom/release/6-11-13.cfm

An article from the Oregon Bureau of Labor and Industries on the use of criminal background checks can be found here: http://www.oregon.gov/boli/TA/docs/TA_Col_07-10-12_Background_Checks.pdf

 

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