b'Discriminatory Use of Criminal Background ChecksWho, What, Why . . . Who does it apply to:All employers that use criminal backgroundWhatareemployerssupposedtododifferently:Toavoid checks to evaluate applicants or employees. accidentallydenyingadisproportionatenumberofBlackor Hispanic people a job or promotion, employers who use criminal What is the issue: Black and Hispanic people are statisticallybackground checks are required to make an in-depth analysis more likely to be arrested and convicted of crimes than whiteof that background. Employers cannot simply deny all people people. As a consequence, employers who make a blanket ruleemploymentbecausetheyhavebeenarrestedorconvicted that any person with an arrest or conviction should not be hiredof a crime. Instead, an employer must determine whether the or promoted may be unintentionally discriminating. The Equalspecific criminal history should be used as a consideration for EmploymentOpportunityCommission(EEOC)usedthesethe job or promotion at issue.statistics to force a settlement with Pepsi over its policy against hiring anyone who has been arrested. Following the settlement,Stated simply, employers should consider whether the particular the EEOC issued new guidelines regarding the use of criminalcrime should really act as a reason to deny a person a job, background checks. a particular job or a particular promotion. As an example, a person considered for a night watchman position where people Are the EEOCs guidelines law: The guidelines do not changeare rarely encountered should not necessarily be denied a job existing law, but they reflect the EEOCs focus on this issue andbecause of a conviction for assault in high school.its intent to use the statistics against businesses.The EEOC wants to foster the use of targeted exclusions for How is the discrimination happening: You know discriminationparticular positions. This means that employers should evaluate is illegal. You are probably less clear on the legal frameworkeach job category and exclude applicants with a criminal history underlying discrimination, which comes in two forms: disparateonlyifthathistoryrelatestotheperformanceofthejobin treatment and disparate impact. Disparate treatment involvesquestion.intentionally treating one employee or a group of employees differentlybecauseofaprotectedcharacteristic.DisparateAre arrests somehow distinguishable from convictions: In the impactisalittlemoresubtle.ItinvolvesaruleorpolicyEEOCs view, employers should not use an arrest alone as a establishedbyanemployerthatdisproportionatelyaffectsbasis to deny a job or promotion to a candidate. The EEOC people in a protected groupin this case, Black and Hispaniccites two primary reasons for this view: (1) arrested people people.are still innocent until proven guilty; and (2) criminal databases aresometimesincomplete,leavingfinaldispositionsoutof The EEOCs guidelines are primarily directed toward disparaterecords which might reflect an acquittal or failure to prosecute.impact discrimination where employers use criminal backgroundInterestingly,theEEOCdoesbelievethatemployerscan checksasathresholdtesttoweedoutapplicantswithoutevaluate the underlying facts and act as judge and jury to decide considering the facts of each individual case. Even though thewhether the person committed the crime and whether there are employers policy is not discriminatory on its face, it can haveextenuating circumstances that negate the arrest.the unintended consequence of reducing the number of Black and Hispanic people in the employers workforce.9'