The trend for ban-the-box laws continues to grow, so it is surprising that some employers still have pass/fail policies and processes for background checks that eliminate applicants from consideration without any individualized assessment.

This opens companies up for lawsuits, and it isn’t just individual applicants who sue companies. Class action lawsuits pop up more and more as law firms actively solicit plaintiffs for lawsuits. As recently as 2024 even the EEOC sued an employer because they found the employer’s policies and procedures to be discriminatory and to have a disparate impact on minorities.

An employer may believe their practices are a business necessity. In the EEOC lawsuit, the employer felt their pass/fail matrix helped them to make hiring decisions that would provide a safe work environment. However, EEOC Regional Attorney Debra M. Lawrence stated that, “even when such necessity is proven, the practice remains unlawful if there is an alternative practice available that is comparably effective in achieving the employer’s goals but causes less discriminatory effect.”

The EEOC’s issues with the employer’s practices are:

• The employer did not have a conversation with the applicants to discuss the item(s) on the reports to get more information.
• Any adverse action based on the report was not reviewed by anyone except the initial screener.
• Reports were not discussed with applicants for verification of the information.
• The applicants did not have an option to appeal the decision.

The simplest, and in some locations, legally required option, is to make individual assessments. Consider the nature and gravity of the offense; the amount of time that has passed since the offense; and how it relates to the specific position. Along with these items, any efforts at rehabilitation should be considered. Talk to the applicant to get more information on any mitigating circumstances. You can find guidance from the EEOC at https://www.eeoc.gov/laws/guidance/enforcement-guidance-consideration-arrest-and-conviction-records-employment-decisions.

Some locations have laws that require written assessments to show how the information from a background check was considered in relation to the position. As always, employers must be aware of the laws in all locations where they conduct business. With so many people working remotely these days, employers should keep in mind that laws apply where the person lives and works. ASE members can use the state law comparator tools in both CCH and Zywave, available on the ASE Member Dashboard.

Employers who use staffing agencies to supplement their staff could have some liability for discriminatory practices by the agencies. When you partner with an agency make sure you know what their hiring practices are and make sure the agency understands your expectations for non-discriminatory practices.

Sources: jacksonlewis.com; eeoc.gov