Credit Checks Under Title VII: Learning from the Criminal Background Check Context
Nearly half of all employers consider applicants’ credit histories when making some hiring or promotion decisions—and they risk violating Title VII of the Civil Rights Act of 1964 (Title VII) when they do so. Employer credit checks have a potentially disparate impact on minorities and an attenuated relationship to asserted concerns about job performance and employee theft. The case law analyzing disparate impact challenges to credit check policies, meanwhile, is sparse, leaving employers with little direction as they shape their practices. This Note suggests that the Equal Employment Opportunity Commission (EEOC) issue detailed guidance on employers’ use of credit checks and proposes a novel framework drawn from agency guidance on the use of criminal records, which adopts the Eighth Circuit’s Green factors. Specifically, the EEOC ought to recommend that employers take into account the source or type of debt, the time between the “negative behavior” and the employment decision, and the nature of the job; the guidelines should also advocate for individualized assessments. Guidance along these lines would clarify what constitutes lawful credit check usage and benefit the job-seekers that Congress intended to protect with Title VII’s enactment.