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States Disagree with EEOC’s Criminal Background Inquiries Stance

The Equal Employment Opportunity Commission (EEOC), the agency responsible for enforcing federal employment discrimination laws, has created guidance concerning criminal background application inquiries. Based on this guidance, some states now disallow hiring companies from inquiring about criminal history in applications. The EEOC’s guidance addressed criminal background inquiries as a form of discrimination; the agency noted that those screened out due to arrest and conviction records were often of a protected class due to the higher statistical rate of certain minority groups that are arrested and incarcerated in comparison to the general population.

While the EEOC does not create law, merely guidelines, they still carry impact nationwide. However, in response to the criminal background application inquiries guidance, the Attorney Generals (AGs) of nine states have disagreed with the EEOC. The AGs argued that the removal of criminal background application inquiries is an incorrect application of the law, based on the consequences, financial burdens, and legal implications the change would have on employers. Additionally, the guidance is against nearly all defined standards of criminal background screens.

The AGs noted many business driven reasons to screen out those applicants with arrests or convictions, including that a criminal background may be indicative of a lack of dependability, reliability, or trustworthiness.  Financially, the AGs noted that extra cost is incurred for employers who would need to individually assess job applicants. The AGs also stated that the EEOC’s guidance may supersede their own state laws, due to the agency’s ability to preempt state and local laws that prohibit the hiring of people of criminal records.

In response to the AGs’ stance on criminal background application inquiries, the EEOC has clarified that they are not stating official laws and that it is not illegal (in most states) to use the results of criminal background checks for hiring. However, the use of the criminal background application inquiry may, in some instances, may qualify as employment discrimination.

The EEOC also clarified that they don’t suggest employers individually assess applicants instead of using standard criminal background methods. Instead, the EEOC suggested the use of targeted screening in tandem with individual assessments.

At this point, the EEOC’s guidance has not been retracted. For more information on using criminal background checks during your application process, contact

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