Texas A&M Law Review

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In many instances, employers have an obligation to conduct criminal background checks on their applicants to ensure that the public that comes into contact with these employees shall not be harmed. In other instances, these criminal background checks are unnecessary as they prove to be of little relevance, yet they have the effect of causing a disparate impact within certain Title VII-protected classes, including Black Americans and Hispanics.

To resolve this disparate impact, the Equal Employment Opportunity Commission (“EEOC”) has set forth non-biding guidance, proposing an assessment of “Green Factors” that employers should consider before denying an ex-convict employment. In following this guidance, the EEOC aims to create equal employment opportunities for all job applicants including those with criminal histories. While this guidance and these Green factors play a large role in furthering societal benefits, many employers have raised objections to the recent EEOC guidance. Employers argue that the guidance creates a “catch-22,” forcing the employer to choose between being liable for negligent hiring and being liable for violating Title VII.

Because the EEOC guidance furthers fundamental societal interests, it should remain in effect. Nevertheless, the guidance must be amended in order to clarify its ambiguous language concerning “business necessity,” which will then resolve the catch-22 conflict that employers currently experience.

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