Over the past several years, we have witnessed increased attention by the EEOC and plaintiffs’ counsel in challenging employer practices in which African American and/or Hispanic applicants are disqualified for employment based on the applicants’ criminal history. This paper focuses on efforts by the EEOC in addressing this issue.

The EEOC’s policy guidance on criminal records initially is addressed. The EEOC has taken the position that an employer’s policy or practice of excluding individuals from employment based on an applicant’s criminal history has an adverse impact on African American and Hispanic applicants, and any such policy is unlawful under Title VII unless it is job related and justified by business necessity. The paper traces the EEOC’s current policy guidance on conviction records, as adopted in 1987, subsequent guidance issued by the EEOC involving criminal records, the EEOC’s E-Race initiative that focuses in part on arrest and conviction records and recent EEOC hearings as the EEOC works toward developing updated guidance dealing with employer reliance on an applicant’s criminal history in the pre-employment process.

The discussion next turns to recent EEOC pattern or practice investigations and lawsuits filed based on the potential exclusion of minority applicants from the hiring process. The EEOC’s Seventh Circuit decision in EEOC v. Watkins Motor Lines, 553 F.3d 593 (7th Cir. 2009) is first examined and illustrates the broad based investigations currently being conducted by the EEOC, which are being approved by the courts.

Two significant lawsuits initiated by the EEOC involving challenges to the use of criminal conviction records in the preemployment process are next examined — EEOC v. Peoplemark, Inc., filed in the U.S. District Court for Western District of Michigan, and EEOC v. Freeman, filed in the U.S. Federal District Court for the District of Maryland. The Peoplemark case provides a useful roadmap concerning the required proof and potential discovery in such actions. The Freeman case, which still is in its early stages, is examined based on the issue brought front and center in the case — the applicable statute of limitations applied to pattern and practice litigation initiated by the EEOC.

Hopefully, this paper will serve as a useful resource as employers continue to wrestle with this evolving area of the law.

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