Testimony: Background Checks, Diploma Requirements

July 17, 2012

On July 18, NSBA’s General Counsel David Burton testified before the Equal Employment Opportunity Commission (EEOC) on the Commission’s Strategic Plan. The testimony argued against prioritizing enforcement actions against businesses with high school diploma requirements or those that conduct and use criminal background checks.

Back in April, the EEOC issued a 55 page document entitled “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act of 1964,” complete with 167 footnotes. This document raises more questions than it answers and provides little meaningful guidance to businesses. The EEOC also has indicated that it will take legal action against businesses that have high school diploma requirements unless they can demonstrate to the satisfaction of the EEOC that the requirement is a business necessity.

Furthermore, the EEOC has indicated that businesses should not rely on arrest records and that complying with state law requirements regarding background checks does not protect against EEOC enforcement actions for doing what state law requires. In his comments, Burton stated that the EEOC has not clearly stated what it wants from the small business community aside from its expectation on small firms to conduct a complex individualized assessment weighing numerous factors regarding the use of conviction records in each hiring decision.  How that is to be done in practice is anybody’s guess.

NSBA urged the Commission to not prioritize enforcement against firms with educational attainment requirements or that conduct criminal background checks unless there is a substantial, factual basis to believe that these requirements have an unlawful purpose.

NSBA also strongly urged the Commission to clarify its guidance with respect to criminal background checks so that the Commission’s expectations are made clear and so businesses can effectively meet those expectations.

To read NSBA’s testimony, click here.

To read the EEOC’s Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act of 1964, click here.