We came across the article, “The Dust Hasn’t Settled Yet: Employers Must Continue to be Thoughtful About Criminal Record Screening Policies,” by Lawyers, Rod M. Fliegel and Garrick Y. Chan of Littler. In the article, Fliegel and Chan discuss ongoing debate, litigation, and reform on the right of employers to conduct criminal record screenings of potential hires. They begin by summarizing EEOC Chair Charlotte A. Burrow’s remarks at a recent conference on new criminal recidivism research.
Chair Burrow discussed the issue of criminal background checks by employers in the context of racial justice and systemic discrimination. According to the article, “Chair Burrows made the point that criminal background checks impact the employment opportunities of those individuals with criminal records and those in, but soon to be released from, prison (i.e., who will be seeking employment in the near term).” Burrows emphasized that while the EEOC does not prohibit criminal background checks, they must be “evidence-based.” Fliegel and Chan explain that Burrow’s comment about background checks being “evidence-based” likely refers to the standard that criminal record screening policies “‘accurately’ distinguish between applicants that do and do not pose an unacceptable level of risk.” In other words, policies must account for the fact that not all individuals with a criminal background pose a significant level of risk to employers.
Although the EEOC has not been heavily involved in criminal background check cases lately, Fliegel and Chan warn employers of a “heightened claims risk.” They note that “Plaintiffs’ attorneys have had some high-profile success negotiating both cash payouts and programmatic relief (i.e., mandatory structural changes to the employer’s criminal record screening policy).” Additionally, “ban the box” laws, which prohibit employers from asking about criminal history on initial job applications, have been passed in over a dozen states. In order to reduce the risk of litigation, Fliegel and Chan recommend that employers review their background check policies, forms, and notices with the help of an expert on the businesses’ needs and legal compliance. They also encourage employers to “assess the adequacy of training, and as needed, arrange for updated training sessions.” In a society with ongoing criminal justice reform at multiple levels, it is imperative that employers remain informed and adapt their policies accordingly.