One of 2013’s hallmarks in the labor and employment field is the aggressive stance taken by the Equal Employment Opportunity Commission (EEOC), which enforces federal anti-discrimination laws. The EEOC’s Strategic Enforcement Plan (SEP), issued in December 2012, makes clear that the Agency’s primary objective is to combat “systemic discrimination” and barriers to employment. In 2013, the EEOC filed 131 merits lawsuits (up from 122 in 2012), and 16 percent of those lawsuits were systemic suits. One of the EEOC’s areas of focus has been the use of background checks, especially criminal history, and the barriers such policies pose to employment. In April 2012, the EEOC updated its guidance on the use of criminal background checks for the first time in more than 20 years. And over the last year, the EEOC has brought suit against a number of employers based on their use of criminal background checks in the hiring process. The EEOC has taken the position that use of criminal background checks in hiring has a disparate impact on African-American and Hispanic male applicants.
Now is the time for employers to review their use of criminal background checks in light of the recent EEOC activity. By following several key recommendations, employers can shore up the defensibility of their use of the background checks, while at the same time improving the quality of their hiring decisions.