Excerpted from a SHRM Blog by Allen Smith J.D.

Criminal background checks should be conducted after a job offer and feature an individualized assessment of any criminal justice record, a U.S. Equal Employment Opportunity Commission (EEOC) lawsuit indicates. Such screening is more necessary and relevant for some positions than others.

Lawsuit’s Allegations

In EEOC v. Sheetz, the commission claims that Sheetz, a large convenience store chain, violated federal law by denying employment to job applicants because of their race. Sheetz has a long-standing practice of screening all job applicants for records of criminal conviction and then denying them employment based on those records, according to the lawsuit. The EEOC maintains that Sheetz’s hiring practices disproportionately screened out Black, Native American/Alaska Native, and multiracial applicants.

“Federal law mandates that employment practices causing a disparate impact because of race or other protected classifications must be shown by the employer to be necessary to ensure the safe and efficient performance of the particular jobs at issue,” said EEOC regional attorney Debra Lawrence in Baltimore.

Even when such necessity is proven, the practice remains unlawful if there is an alternative practice available that is comparably effective to achieve the employer’s goals but causes less discriminatory effect, she added.

Fair Chance Act Requirements

Some state and local laws prevent private sector employers from asking applicants about their criminal history until after a conditional job offer is made. Federal contractors must follow a similar path.

Companies with federal contracts must comply with the federal Fair Chance Act for positions related to the federal contract work, said Jerry Hathaway, an attorney with Fox Rothschild in Atlantic City, N.J., and New York City.

“For those applicants, there may not be a criminal background check until after a conditional offer of employment is made—though there are exceptions for law enforcement/national security, those who require access to classified information, and some very few positions required by law to reveal criminal information before a conditional offer is made,” he said.

If there is no federal contract at issue—and no applicable state or local law banning it—the employer may lawfully ask about criminal history as part of the application process, Hathaway said. “But if it does so, the employer must assess whether using criminal history creates a disparate impact among applicants,” he said. “If it does, then the employer is at risk of being sued, like the target of the EEOC lawsuit.”

Title VII Considerations

To avoid violations of Title VII of the Civil Rights Act of 1964, the best practice is for employers to conduct criminal background checks post-offer, said Emily Borna, an attorney with Jackson Lewis in Atlanta.

Employers also should conduct an individualized assessment of any criminal justice history, Borna said. They should consider:

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