The Equal Employment Opportunity Commission ("EEOC") recently asserted that the use of criminal background checks as an employment screening tool may have a disparate impact on African Americans and Hispanics, in violation of Title VII of the Civil Rights Act of 1964. The EEOC and some private claimants have even filed lawsuits against employers claiming disparate impact violations based on statistics that show African Americans and Hispanics are considerably more likely to have criminal records than other racial groups. Yet, certain federal regulatory agencies require participants in their industries to subject employees to criminal background checks as a condition of employment. The Securities and Exchange Commission ("SEC") is one such agency. The SEC has promulgated a rule requiring industry employers to fingerprint employees and disqualify those that have been convicted of certain types of crimes. This Note discusses the requirements of a disparate impact claim and the EEOC's position that criminal background check policies have a disparate impact on minorities. This Note further examines how technological changes in the securities industry have led to an unnecessarily broad application of the SEC's fingerprint rule, resulting in potential Title VII liability for employers and contributing to the low number of African American and Hispanics in the securities industry. Finally, this Note proposes that the SEC could alleviate the potential Title VII liability created by the fingerprinting requirement by narrowing the scope of the fingerprint rule to bring it within the business necessity defense to Title VII.
An Industry Missing Minorities: The Disparate Impact of the Securities and Exchange Commission's Fingerprinting Rule,
Chi.-Kent L. Rev.
Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol87/iss1/12