Employer Faces Criminal Background Check Lawsuit

As we noted previously, employers have recently gained some wins as it pertains to the disclosure form. However, employers need to remain aware that litigation isn’t focused just on disclosure forms.

On April 20th, a nationwide bank was sued based on allegations it wrongfully discriminated against the plaintiff based on his race in violation of Title VII of the Civil Rights Act. The suit arose from a conditional offer extended by the bank to the plaintiff back in September 2017. Following the offer that was contingent upon the successful completion of a background check, the bank submitted fingerprints it already had on file to the FBI database. As a result of this search, the bank sent a letter to the plaintiff noting he may be denied a position based on the FBI criminal history report which showed a criminal charge that was dismissed. Despite the plaintiff sending in an appeal including court documents showing the dismissal, the bank’s decision remained final and the lawsuit ensued.

The lawsuit also specifically referenced the Equal Employment Opportunity Commission’s (EEOC) Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions issued in 2012. In particular, the complaint cited the Guidance’s recommendation to conduct individual assessments – meaning, reviewing the criminal history results on a background report on a case-by-case basis. Employers should also remember the Guidance cautioned against employers against using arrest records in employment decisions with limited exceptions.

Finally, employers must remain vigilant as the EEOC continues to be active in reviewing the use of criminal history in employment decisions as evidenced by their $6 million settlement with a nationwide employer last fall. As always, Asurint recommends employers work with qualified legal counsel to review their hiring practices including how employment decisions are made with respect to criminal history.