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During the hiring process, employers often scrutinize an applicant’s criminal history to ensure the selection of the best candidates and to prevent the hiring of individuals posing an unreasonable risk to the employer and the public. Illinois Law recognizes an action for negligent hiring or retention when an employer hires or retains an employee it knew or should have known was unfit for the job so as to create a danger of harm to third persons. Van Horne v. Muller, 185 Ill.2d 299, 311, 705 N.E.2d 898 (1998).  The proximate cause of the injury is an employer’s negligent hiring or retention rather than the employee’s wrongful act, which distinguishes this cause of action from a suit alleging liability under the theory of respondeat superior. Id.

On Oct. 12, 2011, the EEOC released an informal discussion letter concerning the lawful use of arrest and conviction records in screening job applicants. This letter dated Sept. 7, 2011 was in response to a Peace Corps request for comments on its proposed application for international volunteers, but it also lends guidance to private employers seeking the same information. The EEOC pointed out that inquiries concerning criminal records of prospective employees do not violate Title VII of the Civil Rights Act of 1964 as Title VII does not regulate such inquiries. However, disparate treatment of minority candidates with criminal histories similar to non-minority candidates would violate Title VII. When a disparate impact on a group occurs, an employer “must not use criminal history in a manner that is not job related” and the information must be “consistent with business necessity.”

When considering conviction records, the EEOC reiterated that any criminal history policies should be “job related and consistent with business necessity.” When excluding a prospective employee for reasons concerning that person’s conviction record, the EEOC advised that “the legal standard is that the criminal conduct is recent enough and sufficiently job-related to be predictive of performance in the position sought, given its duties and responsibilities.” In addressing inquiries as to all convictions regardless of when they occurred, the EEOC recommended that the inquiry not only focus on convictions related to the particular position sought, but also limited to those convictions within seven years of the application.

According to the EEOC, arrest records should be treated differently than conviction records during the screening process, as arrest records are unreliable indicators of guilt. Because a conviction requires proof beyond a reasonable doubt--the highest degree of proof--a conviction record serves as a “sufficient indication” that the prospective employee engaged in the reported conduct whereas an arrest alone still carries the presumption of innocence and the prosecution may in its discretion dismiss the charge that lead to the arrest. Moreover, arrest records are unreliable because some agencies fail to report the final disposition resulting in an incomplete record. Lastly, the EEOC advised that inaccuracies in arrest records may be caused by several factors including but not limited to confusion regarding identifying information, clerical errors and misspellings. Like conviction records, the EEOC recommended that inquiries into arrest records should be limited to those arrests for offenses related to the position sought. The EEOC further recommended that applicants should be given a “reasonable opportunity” to dispute the validity of arrest records to guarantee that accurate information is relied upon.

While this letter is an informal discussion and not the official opinion of the EEOC, those employers who wish to proceed with the utmost caution should restrict criminal history inquiries of prospective employees according to the nature of the position sought and some relevant period of time. Employers should also take steps to ensure the accuracy of the criminal history information obtained. (EEOC Compliance Manual-No. 199).