Case 36: Are Criminal Background Checks Discriminatory?
1. Do you agree with the EEOC or the WSJ?
With its criminal background check policy, the EEOC is trying to make the type of conviction
relevant to the job at issue. The WSJ believes all convictions of whatever kind disqualify an
employee or applicant. There are many reasons why someone may have a conviction: failure to
2. Are blanket exclusions of people with criminal backgrounds discriminatory or should
businesses be given the discretion to make the employment decision when a potential or current
employee is found to have a criminal background?
Blanket exclusions are discriminatory. A conviction should disqualify someone from a job only
if it is relevant to that job, and makes the candidate unqualified or risky in some way. BMW’s
3. How would you determine whether a conviction record is “job related and consistent with
business necessity?”
One example would be that any job involving the handling of cash might be affected by a
conviction for petty theft or robbery, but not one for damage to school property. One would not
hire as a security guard someone who had been convicted of assault and battery. In each case, the
4. What factors would affect your decision? Would it vary by the nature of the conviction? If so,
how would it vary? Would it vary by the nature of your business and industry? If so, how would
it vary?
Yes, as mentioned above it would vary by the type and nature of the conviction—first, whether
it’s a misdemeanor or felony, and second, the nature of the crime. Another factor would be how