NCISS has filed official comments regarding the Equal Employment Opportunity Commission's proposed Strategic Enforcement Plan. We are opposing restrictions on employer use of criminal records checks.  

Earlier this year, the EEOC issued an updated guidance for employers' use criminal histories. The EEOC is charged with enforcing the Civil Rights Act. Courts have determined that some use of criminal background checks by employers can cause a disparate impact on protected classes of minorities. This guidance updates previous work of the EEOC. Although the EEOC is not permitted to issue a formal rule, this guidance is important because the EEOC can sue employers on behalf of employees, and the guidance can be used by private plaintiffs.

Employers are not banned from using background checks. But they must analyze whether they have a specific acceptable reason related to the nature of the job for requiring the checks. The guidance has a lengthy discussion of how to do so.

The EEOC is now in the process of formulating its enforcement priorities, and has proposed targeting employers' use of criminal background checks that impact the hiring of minorities. NCISS rejects the proposition that the use of criminal histories has a negative impact on the hiring of minorities. In comments filed this week, NCISS states:

"But we strongly believe that there is no clear evidence that the use of criminal background reviews leads to a disparate impact on protected classes. In fact, an employer who may harbor some bias against minorities may be more inclined to hire a minority applicant after he or she is cleared through a criminal records check. Facts can overcome prejudice."

NCISS members are employers themselves and are required by most states to conduct background checks. We urged that no effort be made by the EEOC to preempt these state requirements.

Earlier this year Washington Advocate Larry Sabbath met with officials at the EEOC to make the case for the use of background checks. The association also has worked with a coalition of business groups on the issue.

NCISS will continue to oppose further limitations of the use of criminal histories.

Keeping the profession informed,

Jimmie Mesis

NCISS Legislative Chairman

NCISS

7501 Sparrows Point Boulevard

Baltimore, Maryland 21219-1927

T-(800) 445-8408  F-(410) 388-9746

jim@nciss.org

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