Are Background Checks Discriminatory? The Statistical Inquiry At A Glance

Capabilities and Services

The Equal Employment Opportunity Commission (EEOC) has recently brought suit against two large employers, accusing them of improperly using criminal background checks in hiring. These suits fuel a continuing debate over whether such screening, reported to be used for at least some job openings at more than 90% of firms, amounts to discrimination against black and Hispanic applicants. The EEOC indicated its concern about these checks in April 2012, offering guidance that no screen should be applied uniformly but instead that firms must consider, at a minimum, the nature of the job, the nature of the conviction, and the number of years since the conviction. This EEOC guidance followed a $3.1 million settlement with Pepsi Beverages Co. in January 2012 to resolve race discrimination claims relating to Pepsi’s criminal background check policy.

This heightened attention raises a number of challenging questions for employers. Experts in NERA's Employment and Labor Practice are frequently asked to help answer these questions by applying statistical tools to assist firms conducting in-house audits of their hiring practices, as well as those embroiled in class action litigation alleging bias.