LDF and Other Civil Rights Advocates File Brief Urging Ninth Circuit to Defer to EEOC’s Guidance on Criminal Background Checks in Employment

Yesterday, the NAACP Legal Defense & Educational Fund, Inc. (LDF) filed a “friend of the court” brief in Guerrero v. California Department of Corrections and Rehabilitation, a case before the Ninth Circuit Court of Appeals, arguing that the court should rely on the Equal Employment Opportunity Commission’s (EEOC) 2012 Guidance on Employer Consideration of Arrest & Conviction Records in determining whether particular employers’ criminal background check policies unfairly exclude applicants of color. LDF was joined on the brief by the National Employment Law Project and the Leadership Conference for Civil and Human Rights. This brief was filed during “National Reentry Week,” which recognizes the many significant obstacles to successful reentry—including finding employment—that many individuals encounter after incarceration. 

“Overbroad and inaccurate criminal background checks deny qualified applicants fair opportunities to compete for a job,” said LDF Ford Foundation Fellow Josh Rosenthal. The economic cost of unemployed individuals with felony convictions—a figure that understates the problem because most individuals with a record do not have a felony conviction—has been estimated at $57 to $65 billion per year, or approximately half a percent of GDP. “Furthermore, these devices do not accurately assess who can – and cannot – do the job well. Instead, they promote discrimination on the basis of unfounded fears and prejudices,” Rosenthal continued. 

Victor Guerrero, the plaintiff in this case, was brought to the United States as a child without lawful immigration status. After he legalized his status, he applied for a job as a prison guard with the California Department of Corrections and Rehabilitation. He was not hired because he admitted to having used an invalid social security number in the past. Judge William Alsup of the U.S. District Court for the Northern District of California found that the application’s question about use of an invalid social security number unfairly excluded a disproportionate number of Latino job applicants from consideration for employment. Judge Alsup rejected the Department’s argument that the question predicted an applicant’s honesty, integrity, and good judgment, noting that it did not undertake any individualized review of Mr. Guerrero’s circumstances or provide any evidence that prior use of an invalid social security number was a reliable indicator of future job performance. The Department appealed this decision to the Court of Appeals for the Ninth Circuit. 

The federal employment discrimination statute upon which Mr. Guerrero’s suit is based, Title VII of the Civil Rights Act, prohibits unnecessary employment requirements that affect racial minorities to a greater degree than others. Because of underlying racial disparities in the criminal justice system, the use of criminal background checks by employers unfairly excludes a disproportionate number of qualified African-American and Latino job applicants. 

In 2012, the EEOC released Guidance on the use of criminal background checks. Building on years of EEOC policy, scholarly research, and public input, the Guidance explains how employers’ consideration of applicants’ criminal history may unfairly and disproportionately exclude applicants of color and outlines an approach for the use of criminal history information that is consistent with actual business necessity. Specifically, the Guidance requires employers to consider the nature of a conviction, the context of the job in question, and the age of the conviction, while giving applicants an opportunity to dispute inaccuracies and provide evidence of rehabilitation. “The Ninth Circuit should recognize that the EEOC Guidance reflects a thoughtful, measured approach to criminal background checks in employment, and make clear that it will use the agency’s approach in this and future cases,” said LDF Deputy Director of Litigation Coty Montag.


Founded in 1940, the NAACP Legal Defense and Educational Fund, Inc. (LDF) is the nation’s first civil and human rights law organization and has been completely separate from the National Association for the Advancement of Colored People (NAACP) since 1957—although LDF was originally founded by the NAACP and shares its commitment to equal rights. In media attributions, please refer to us as the NAACP Legal Defense Fund or LDF.