The Equal Employment Opportunity Commission (EEOC) has a long-standing policy that an employer’s policy or practice of excluding individuals from employment because they have criminal conviction records is unlawful under Title VII of the Civil Rights Act of 1964 unless the policy or practice is justified by a business necessity. The EEOC’s position is based on statistics showing that African-Americans and Hispanics are convicted at a rate disproportionately greater than their representation in the population which, in the EEOC’s view, means that employment decisions based on criminal conviction records have an adverse impact on African-Americans and Hispanics.

If an employer’s criminal conviction policy has a disparate impact on African-Americans and Hispanics, then the policy likely violates Title VII unless the employer can demonstrate that the policy is job-related and consistent with business necessity. According to the EEOC, an employer making an employment decision based on a criminal conviction must consider the following three factors to meet this burden: (1) the nature and gravity of the offense(s), (2) the time that has passed since the conviction and/or completion of the sentence, and (3) the nature of the job held or sought.

Although it has long been the EEOC’s policy that an absolute bar to employment based on a criminal conviction record is unlawful, the EEOC has recently shown increased interest in challenging these practices.

In the past two years, the EEOC has filed at least two lawsuits against companies that have adopted criminal history policies that, in the EEOC’s view, have a disparate impact on African-Americans and Hispanics. In addition, the EEOC appears to be taking a more aggressive posture in its investigation of administrative claims of discrimination based on criminal background checks. In some cases brought by individual applicants who allegedly were denied employment based on their criminal histories, the EEOC has broadened the scope of its investigation to reach beyond the individual applicants’ circumstances and has sought information regarding the employer’s application of its criminal history policy to a broad class of applicants.

With the EEOC’s increased focus on criminal conviction policies, employers are encouraged to take this opportunity to review their criminal background check policies and other background check practices, including credit checks.