In sum, the Guidance is useful in many respects. It shows employers who use criminal history information in making hiring decisions how to withstand a disparate treatment challenge to that practice. It explains the origins and evolution of the controversial and difficult-to-understand disparate impact theory and is replete with data -- far more so than prior iterations of the Guidance -- showing that criminal background check policies are susceptible to attack under that theory. And it gives employers updated advice on how to avoid liability under the theory.
But the Guidance is also problematic. It is vague in many areas. Employers, especially smaller ones, may find it difficult and expensive to follow. Marshaling social science research, deciding how long a ban should last and for what crimes, and individually assessing applicants, particularly in industries with a high turnover rate, will not be easy tasks to carry out. The EEOC must also be faulted for not acknowledging the risk to an employer if it fails to conduct a criminal history check on a new hire who harms a third party. Plaintiffs often seek ways to go after the deep pocket if an employee harms them; the goal of a negligent hiring claim is to reach those with the money, especially if the employee caused the harm while acting outside the scope of employment. Such conduct is actionable in a negligent hiring claim.
Until the Guidance is clarified or discarded, employers have little choice but to make, with the aid of counsel, a cost-benefit assessment of how to proceed. Much will depend on the size of their workforce, nature of their employment positions and risk of harm to third parties that these entail, constraints imposed by state and local law, the extent to which minorities versus whites are disqualified from employment in their geographic area, how willing the employer is to gamble that it can steer clear of an EEOC investigation, and whether it has the time, money, and will to comply with the Guidance in all respects. That an employer has carefully analyzed the issue should stand it in better stead if the policy it develops is challenged. Finally, if an employer decides not to comply with some parts of the Guidance, it can take some comfort in the fact that, just as they are free to ignore rules promulgated by any administrative agency, courts do not always honor the policy statements of the EEOC.