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Washington Retail Insight

EEOC Issues New Guidelines on Criminal Background Checks

By J. Craig Shearman
Washington Retail Insight
April 25, 2012

The Equal Employment Opportunity Commission today issued new guidelines that could affect retailers’ ability to use criminal background checks to screen job applicants.

“NRF is pleased that the commission took time to listen to the retail industry but we are still very much concerned that the guidelines recommend ‘banning the box’ on job applications and restrict employers’ ability to ensure the safety of their workers and customers,” NRF Senior Vice President for Government Relations David French said. “NRF will continue to hold conversations with the commission, stakeholders and other business organizations on the importance of background checks.”

While the commission stopped short of banning criminal background checks, the panel said refusing to hire someone who has a criminal record could constitute illegal discrimination if such decisions disproportionately affect minority groups. Any decision not to hire must be “job related and consistent with business necessity” and must take into account factors such as the nature and gravity of the criminal defense, the amount of time since the conviction and the relevance of the offense to the job being sought, the panel said.

EEOC Chairwoman Jacqueline Berrien characterized the move as an update that “clarifies and updates the EEOC’s long-standing policy” rather than a major change.

But Commissioner Constance Barker, who opposed the move in this morning’s 4-1 vote, criticized an “utter and blatant lack of transparency” in adopting the guidelines without following other agencies’ standard practice of releasing a proposed version of new rules and inviting public comment before a final version is adopted. While the EEOC has talked about a change since last summer, no formal proposal was ever released. She contended that the new guidelines exceed the commission’s authority by going beyond the requirements of the Civil Rights Act of 1964.

“I’m afraid the only real impact the guidance will have will be to scare business owners from ever conducting criminal background checks,” Barker said. “The unintended consequences will be that even those business owners who we all agree should conduct criminal background checks simply will not.”

NRF has led the retail industry’s efforts opposing restrictions on background checks. An NRF survey conducted last year found that 87 percent of retailers use criminal background screenings.

© 2012 National Retail Federation

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