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Tel: 202/662-8600
Employment Discrimination
Access Campaign Hotline: 888/324-7578
Fax: 202/783-0875
www.lawyerscommittee.org
Visit the EEOC’s Web site at:
http://www.eeoc.gov/laws/practices/inquiries_arrest_conviction.cfm
Visit the FTC’s Web site at:
http://www.ftc.gov/bcp/edu/pubs/business/credit/bus08.shtm
Visit the Bureau of Consumer Protection at:
http://business.ftc.gov/documents/bus08-using-consumer-reports-
what-employers-need-know
Visit the Lawyers’ Committee Web site:
http://www.lawyerscommittee.org
For a more comprehensive description of Best Practices follow
the link:
http://www.lawyerscommittee.org/projects/
employment_discrimination/publications?id=0037
©Copyright 2013 Lawyers Committee for Civil Rights Under Law
How to Safely Limit Use of
Criminal Records in Hiring

2. A 2012 poll of the Society of
Human Resource
Management shows that
approximately 92 percent use
criminal histories in screening
job applicants. While
employers are permitted,
under certain circumstances, to rely on the information
obtained about an applicant or employee from a criminal
history and/or consumer report in making employment
decisions, employers must take certain precautions to
ensure they do not violate federal laws.
In 2012 the EEOC released an updated enforcement
guidance on the use of criminal background checks in
hiring. It cited a large and increasing disparity in the
percentage of minority workers who have criminal records
compared to the percentage of whiteworkers. Considering
that African Americans and Latinos are more likely to be
arrested than whites, more likely to be charged once
arrested, and more likely to be convicted and incarcerated
when charged, it is important for employers to be aware
of this updated guidance to avoid Title VII liability.
This brochure serves to advise employers of their legal
responsibilities when obtaining criminal and consumer
histories for job applicants and employees, potential legal
consequences under federal law for failing to comply with
these legal responsibilities, and best practices in
implementing the lawful usage of background checks
when making employment decisions.
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The EEOC’ position is based on statistics demonstrating that certain minority
groups are arrested and denied credit advantages at a disproportionately higher
rate than non-minorities. Therefore, broad policies that deny all persons
employment because of a negative credit history or criminal background may lead
to “disparate impact” lawsuits under Title VII.
“Disparate impact” means that a policy or practice that appears to be neutral
adversely affects minority applicants/employees. Employers may avoid liability only
when the contested policy or practice is both job related and consistent with
business necessity and when no less discriminatory alternative is available to
achieve the same intended objective.
Although the EEOC has focused on the racial impact of background checks,
employers face the same liability if their policies have a disparate impact on
employees or applicants because of gender or other protected status. Employers
may also face liability under state anti-discrimination statutes.
 Be consistent by obtaining the same type of information from background
checks for all applicants/employees;
 Comply with all of the procedural disclosure, notice and consent requirements
in the FCRA and any applicable state consumer reporting statute;
 Ensure that any adverse action taken as a result of information obtained
through a background check is necessary for the employer’s business.
Any employer that is unsure whether he or she can lawfully take an adverse action
based on information obtained through a background check should consult legal
counsel before making a final decision.
Employers can also face liability under state laws restricting the use of criminal
record histories. An employer who spreads damaging information about an
applicant or employee that turns out to be inaccurate, can face liability for
defamation as well. Before acting on any background information, employers
should make sure the information is reliable and that no state law prohibits its use.
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SUMMARY

3. 8. CONFIRM ALL INFORMATION FROM ONLINE DATABASES WITH ORIGINAL
SOURCE
Online databases are not always accurate or up to date. All information from
such databases should be confirmed with the original source.
9. PROVIDE APPLICANT THE OPPORTUNITY TO CHALLENGE THE CRA’S REPORT
Whether or not required to do so by FCRA, employers should provide
applicants with a prompt and convenient method of challenging information
in the CRA’s report.
10. ALL CHARGES RELATED TO A SINGLE INCIDENT SHOULD BE REPORTED AS A
SINGLE ENTRY
Reporting information relating to a single incident in different sections of a
report can create the impression that multiple incidents took place. Use a CRA
that reports all information related to a single incident in a single entry.
11. CONSIDER EVIDENCE OF REHABILITATION
People change over time. Many people with criminal convictions change their
lives and become good citizens who can be good employees. Applicants with
relevant convictions recent enough to be of concern should not automatically
be rejected. Instead, he or she should be given the opportunity to present
evidence of rehabilitation which the employer should carefully consider
before making a decision.
12. MINIMIZE CONFLICT OF INTEREST BY DECISION MAKERS
Employees making hiring decisions regarding applicants with criminal records
are in a difficult situation. If the company hires an applicant with a record who
later commits another offense, the employee who hired them may be
blamed. Hiring decisions should be made by an employee (or employees) who
are in the best position to make an objective decision.
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©Copyright 2010 Lawyers Committee for Civil Rights Under Law
Employers that rely on “consumer reporting agencies” (often referred to as CRAs) to
conduct background checks by obtaining what the law refers to as “consumer
reports” must comply with the Fair Credit Reporting Act (FCRA). Other relevant
federal statutes include Title VII of the Civil Rights Act, which prohibits employer
discrimination based on race, gender, religion, or national origin.
FCRA requires employers to ensure that applicants/employees: (1) know that
consumer reports are being obtained for employment purposes; (2) agree to
disclose these reports; (3) receive notifications when an employer intends to take
action based on information gathered from the consumer reports; and (4) are given
an opportunity to correct any errors in the information reported.
The Equal Employment Opportunity Commission (EEOC), which is the federal agency
responsible for enforcement of civil rights statutes like Title VII, has issued
guidelines that employers should follow when taking an adverse action based on
the criminal history of an applicant or employee. The commission’s guidelines
reflect the reality that if incarceration rates remain unchanged, about one in 17
white men are expected to serve time in prison during their lifetime; compared with
one in six Hispanic men and one in three African American men.
According to these 2012 guidelines, the employer must consider:
 The nature and gravity of the offense or offenses of which the applicant/
employee was convicted;
 The time that has passed since the conviction or completion of the criminal
sentence; and
 The nature of the job held or sought.
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4. Possible legal pitfalls exist under federal law if an employer misuses or improperly
relies on the results of a background check. Employers may face additional
liabilities under state laws and should consult applicable state laws.
FCRA
Employers that fail to comply with the FCRA requirements described above may
be legally responsible for any harm caused to an employee or applicant.
Employers may be required to pay actual damages, punitive damages, costs and
attorneys’ fees as a result of such non-compliance. In addition, employers may be
subject to certain financial penalties imposed by the Federal Trade Commission.
State laws may impose additional penalties.
Title VII of the Civil Rights Act
The EEOC believes that employers that have sweeping policies prohibiting the
hiring of individuals based on their criminal history may negatively impact
minority populations. See Best Practices on the following page for
recommendations on how to avoid Title VII liability.
The employer should be able to demonstrate the connection between the nature
of the crime and the employee’s or applicant’s position. The EEOC has also issued
guidance that arrest records alone cannot be used to exclude individuals from
employment.
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1. CONSIDER ONLY CONVICTIONS AND PENDING PROSECUTIONS
The fact that someone has been charged with a crime should not disqualify
him/her for a job if s/he was not convicted. If a person is being prosecuted for
an offense that is relevant to a job for which s/he has applied, an employer may
consider it.
2. CONSIDER ONLY CONVICTIONS THAT ARE RELEVANT TO THE JOB IN QUESTION
A person who has committed an illegal act in the past may be more likely than
the average person to commit a similar act in the future, but rarely is s/he more
likely to commit other offenses. For example, a person who has been convicted
of DUI may put the employer and the public at risk in a job that involves driving,
but not in other jobs.
3. CONSIDER ONLY CONVICTIONS RECENT ENOUGH TO INDICATE SIGNIFICANT RISK
The risk that someone who has been convicted of a crime will commit another
offense decreases over time. Employers should consider the available evidence
on recidivism rates before rejecting an applicant who has been living in the
community without getting into trouble again for some time.
4. DO NOT ASK ABOUT CRIMINAL RECORDS ON APPLICATION FORMS
Delaying learning about an applicant’s criminal record until the interview or
later enables the employer to make hiring decisions based on work experience
and qualifications, rather than stereotypes.
5. USE A QUALIFIED AND RESPONSIVE CRA TO CONDUCT RECORD CHECKS
All consumer reporting agencies are not equal. Employers should consider the
quality of CRAs’ procedures and results and not decide which one to use based
solely upon cost. This includes CRAs that report only convictions that are
relevant and recent enough to pose risk for the job in question. These
determinations should be provided to the CRA with instruction to report only
convictions that meet these criteria.
7. ASK CRA TO REPORT CONVICTIONS ONLY WHEN FULL NAME AND ONE OTHER
IDENTIFIER MATCH
In a country of over 300 million people, many people have the same first and
last name. A conviction should only be reported to an employer when the full
name (including middle name where available) and at least one other identifier
match.
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Best Practices