33 East Main Street, Suite 610
Madison, WI 53703
(608) 257-2281

Employers Should Be Wary When Using Criminal History

Peter J. Richter

August 15, 2013

While some states, like Wisconsin, generally outlaw discrimination on the basis of an individual’s criminal history (subject to certain exceptions), a criminal record is not a protected characteristic under federal law. Nevertheless, an employer may be liable for discrimination under Title VII of the Civil Rights Act (Title VII) if the employer’s use of criminal history results in the disparate treatment or a disparate impact based on race, color, religion, sex, or national origin. In fact, the Equal Employment Opportunity Commission (EEOC) has issued written guidance on the use of criminal history in employment decisions. Included in the EEOC guidelines are the following:

  • If a challenging party proves that the criminal history impacts one protected group more than another, the employer may face liability under a Title VII “disparate impact” analysis. If disparate impact is found (i.e., criminal history is used identically across all groups but its use impacts one group disproportionately to another), the burden will shift to the employer to demonstrate that the criminal history is related to the position and consistent with business necessity. To meet that burden the employer should consider the nature and gravity of the offense, the time that has passed since the criminal conduct occurred, and the duties and responsibilities of the position.
  • The EEOC also recommends that an employer grant an affected individual an opportunity to explain any mitigating factors including: Facts surrounding the offense(s); rehabilitation efforts; type, length, and consistency of any employment prior to and after the offense(s); and any other factors tending to evidence the individual’s fitness for a particular position despite his or her criminal history.
  • An employer should document those facts and reasoning supporting the relation to the position and business necessity defense.

In summary, the EEOC has emphasized that the use of criminal history may have a disparate impact on certain individuals falling within a protected class. While the EEOC has faced some serious criticism from the attorney generals of nine states, a few federal judges and some legal commentators, it seems unlikely that the agency will completely reverse its stance on the issue. It appears to be the EEOC’s position that concerns about the guidelines are overblown and that the guidelines do not mean it is illegal for an employer to use the results of criminal background screening when making employment related decisions. Nevertheless, any employer that uses criminal background information should still be prepared to demonstrate the relation to the position and business necessity defense for those adverse employment decisions involving the use of criminal history.

If you have any questions about how the information in this article may affect you or your business, please contact Peter Richter at prichter@stroudlaw.com or (608) 257‑2281 or your Stroud attorney.


DISCLAIMER: The information in this article is provided for general informational purposes only, is not necessarily updated to account for changes in the law, and should not be considered tax or legal advice. This article is not intended to create, nor does the receipt of it constitute, an attorney-client relationship. You should consult with your own legal and/or financial advisors for legal and tax advice tailored to your specific circumstances.