Was employer’s background check policy discriminatory toward Hispanic applicant?


A county community center rents rooms to the public for meetings and parties in addition to athletic facilities for local recreational sports leagues. The center has a targeted rule prohibiting anyone with a conviction for theft crimes (e.g., burglary, robbery, larceny, identity theft) from working in a position with access to personal financial information for at least four years after the conviction or release from incarceration. However, individuals who are identified for exclusion are given an opportunity to provide information showing that the exclusion should not be applied to them.

Isaac, who is Hispanic, applied for an administrative assistant position at the center. The job involves accepting credit card payments for room rentals, in addition to having unsupervised access to the personal belongings of people using the facilities. After conducting a background check, the employer learned that Isaac pled guilty 18 months earlier to credit card fraud and that he did not serve time in prison. After confirming these facts, Isaac provided a reference from his current employer and asked for a “second chance” to show that he is trustworthy. Isaac’s application was still rejected because his criminal conduct occurred 18 months ago and was directly related to the job in question. Isaac filed a Title VII complaint, arguing the policy has a disparate impact on Hispanics and is not job-related and consistent with business necessity.


While the community center’s policy did have a disparate impact on Hispanics, there was no reasonable cause to believe that discrimination occurred in this instance, according to an investigation by the EEOC. The employer’s policy was job-related and consistent with business necessity. The background check conducted by the center was carefully tailored to assess unacceptable risk in relevant positions, for a limited time period, consistent with the evidence. The policy also avoided overbroad exclusions by allowing individuals an opportunity to explain special circumstances regarding their criminal conduct.

Source: EEOC Guidance: “Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII,” reported in Employment Practices Guide, New Developments ¶5347.

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