November 28, 2016 Articles

Fair in Form, But Discriminatory in Operation: Disparate Impact Claims

By Ruth J. Addison

Background checks are necessary because most employees have access to sensitive information held by their employers or work in regulated industries or interact with the public. Every employer's worst nightmare is a bad hire or someone who is incompatible with the employer. A bad hire can negatively influence other employees' attitudes and office morale. Hence, employers should take precautions to protect themselves, not only from a bad decision but also from future litigation, by providing and requesting certain information during the application process.

One of the primary concerns with background checks is that they may reveal a criminal history that has no bearing on the position for which the applicant applied. Because racially diverse people are arrested and convicted at a higher rate than the majority, background checks may prejudice racially diverse applicants from obtaining gainful employment. If a criminal history is revealed, the employer should be very fair, cautious, and meticulous in its approach. Failure to do so may create a "disparate impact" claim and an Equal Employment Opportunity Commission (EEOC) charge of discrimination. See Griggs v. Duke Power Co., 401 U.S. 424 (1971).

This article generally discusses background check requirements and the potential impact of those checks on certain protected classes.

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