that a less discriminatory alternative was
available. Thus, the wisest course of action
is often to institute a targeted screen that
includes an individualized assessment of
each applicant, taking into account all surrounding circumstances, including possible
alternatives to exclusion. This does not
mean that employers should hire persons
whom they believe pose an unreasonable
risk. But they should develop policies
that are demonstrably connected to minimizing definite, identifiable risks and
apply such policies consistently.
Complying With Arizona Law
The Arizona Civil Rights Act requires
all employers conducting background
checks to explicitly state that criminal
convictions shall not be an absolute bar
16 Though compliance
with a federal statute requiring back-
ground checks will serve as a defense to
a disparate-impact claim, such is not neces-
sarily the case with state and local laws. The
EEOC has taken the position that “if an
employer’s exclusionary policy or practice
is not job related and consistent with busi-
ness necessity, the fact that it was adopted
to comply with a state or local law or regu-
lation does not shield the employer from
Title VII liability.”
17 Stated differently, an
Arizona company cannot rely on an
Arizona statute mandating background
checks to defeat a disparate-impact claim.
That said, Arizona, unlike some other
states, does not specifically require employers to independently run background
checks for specific occupations. However,
Arizona does require some employers to
obtain “fingerprint clearance cards” from
the Arizona Board of Fingerprinting.”
These cards will generally be granted unless
the individual’s background contains a
conviction for a specific enumerated
19 Applicants denied a card may
1. U.S. Equal Emp’t Opportunity Comm’n, Enforcement Guidance on
the Consideration of Arrest and Conviction Records in Employment
Decisions Under Title VII of the Civil Rights Act of 1964 (April 25,
2012) (hereinafter “Enforcement Guidance”).
2. There are also requirements under the Fair Credit Reporting Act
(FCRA) and various state laws that may be applicable to employers
running background checks. Although not covered herein, employers
should ensure their background check polices comply with the FCRA
and all other applicable laws, in addition to Title VII.
3. Letter from Patrick Morrisey, Attorney General of the State of West
Virginia, et al. to U.S. Equal Emp’t Opportunity Comm’n (July 24,
2013), available at
EEOC-Letter-Final.pdf (last visited Feb. 15, 2014).
4. Id. at 6; see also Dothard v. Rawlinson, 433 U.S. 321, 329 (1977)
(to make a prima facie case for discrimination under Title VII,
“a plaintiff need only show that the facially neutral standards in
question select applicants for hire in a significantly discriminatory
5. Enforcement Guidance, supra note 1, at 3.
6. EEOC v. Freeman, 09-CV-2573-RWT 24 (D. Md., Aug 9, 2013)
(“it is simply not enough to demonstrate that criminal history or
credit information has been used”).
7. Id. at 25 (“it is not enough for the plaintiff to show that ‘in general’
the collective results of a hiring process cause disparate impact.
Statistical analysis must isolate and identify the discrete element in
the hiring process that produced the discriminatory outcome.”).
8. Griggs v. Duke Power Co., 401 U.S. 424, 432 (1971).
9. Dothard, 433 U.S. at 333 (reviewing height and weight standard,
not a criminal background check policy).
10. See Enforcement Guidance, supra note 1, at 8-9.
11. This process requires substantial data and record keeping, making it
difficult and/or inefficient for many employers to use.
12. Enforcement Guidelines, supra note 1, at 10.
13. See Green v. Mo. Pac. R.R., 523 F.2d 1290, 1298 (8th Cir. 1975)
(“We cannot conceive of any business necessity that would automati-
cally place every individual convicted of any offense, except a minor
traffic offense, in the permanent ranks of the unemployed.”)
14. See El v. Se. Pa. Transp. Auth., 479 F.3d 232, 240 (3d Cir. 2007)
(“some abstract notion that more of a given quality is better is
insufficient to justify a discriminatory policy”).
15. In instituting any policy, employers should be wary that they do not
unwittingly expose themselves to disparate treatment claims.
16. Office of the Arizona Attorney General Civil Rights Division, Guide
to Pre-Employment Inquires Under The Arizona Civil Rights Act, 4,
files/PRE-EMPLOYMENT_INQUIRIES.pdf (last visited Feb. 15,
17. Enforcement Guidelines, supra note 1, at 23 (emphasis in original).
18. See, e.g., A.R.S. §§ 36-411 (residential care institutions); 36-425.03
(children’s behavioral health programs); and 46-141 (contract
providers of juvenile services).
19. A.R.S. § 41-1758.03(A).
20. Id. § 41-619.55.
21. Griggs, 401 U.S. at 436.
request a “good cause exception.”
even when a fingerprint clearance card is
required, Arizona law does not require
employers to exclude all individuals with a
criminal record or any person indefinitely.
Thus, although the issue has not yet been
litigated, an employment exclusion man-
dated by current Arizona law (such as
due to a failure to obtain a fingerprint
clearance card) is likely consistent with
the EEOC’s guidelines.
A fairly applied policy that “measure[s]
the person for the job and not the
person in the abstract” satisfies the
standards of Title VII.
21 Despite the
EEOC’s seemingly increased focus,
criminal background checks, properly
used, remain an acceptable business
practice. But employers should tailor
their policies carefully to address real
risks posed by particular criminal conduct,
not criminal conduct generally. The broader the exclusion applied, the more likely it
is to subject the employer to charges of discrimination. Although no policy is immune
from challenge, the wisest approach is to
consider applicants as a whole, and not
only their criminal history.
Criminal Background Checks
A fairly applied
policy that “measure[s]
the person for the job
and not the person
in the abstract”
satisfies the standards
of Title VII.