The EEOC recently has stepped up enforcement against employers who use criminal background checks to screen potential employees. The agency contends that policies that exclude applicants with criminal records violate Title VII because they have a disparate impact on blacks and Hispanics, as InsideCounsel reported in April.

But employers say they are caught in a Catch-22, citing their obligation under OSHA's general duty clause to provide a safe workplace and their liability for negligent hiring claims following incidents of violence or harassment.

Negligent hiring and negligent supervision claims arise when an employer knows or should have known of an employee's potential to be a threat to other people. According to Clint Robison, a partner at Hinshaw & Culbertson, employers lose negligent hiring cases 75 percent of the time, and the average settlement of such claims is $1 million.