• LinkedIn
  • YouTube
  • Twitter
  • Facebook
  • Google+

EEOC urges caution on criminal background checks

by on
in Employment Background Check,Hiring,Human Resources

The EEOC last week issued guidance reinforcing its long-standing view that when employers use criminal histories to screen out job applicants, it can violate Title VII of the Civil Rights Act by having a disparate impact on minorities.

EEOC Enforcement Guidance #915.002 makes clear that the commission recommends against asking applications about criminal convictions on job applications. “If you are an employer, this is required reading for your hiring officers,” said Pamela Devata, an attorney with the Seyfarth Shaw law firm who specializes in criminal background check issues.

The takeaway: If job applications—or hiring managers—ask about applicants’ criminal conviction histories, employers better be able to prove they have a good business reason for seeking the information.

The guidance also makes clear that the EEOC never considers it appropriate to ask applicants if they have ever been arrested. It says knowing about arrest records is not “consistent with business necessity.”

The guidance comes hard on the heels of Pepsi’s decision earlier this year to pay $3.1 million to settle EEOC charges that it discriminated against minorities when it refused to hire applicants with arrest records.

Surveys show that nine out of 10 employers subject some or all job candidates to criminal background checks. The goal: Combatting employee theft and fraud, screening out potentially violent applicants and limiting liability for negligent hiring.

In a statement, the Society for Human Resource Management said it “considers criminal background checks an appropriate tool to help employers make informed hiring decisions while ensuring the safety and well-being of their employees and customers.”

The EEOC has long contended that criminal background checks discriminate against minority job applicants. However, this is the first time the commission has set out formal guidance on the issue.

An EEOC statement noted, “While Title VII does not prohibit an employer from requiring applicants or employees to provide information about arrests, convictions or incarceration, it is unlawful to discriminate in employment based on race, color, national origin, religion, or sex.

Officially designed to help EEOC investigators scrutinize hiring practices, the guidance is also a roadmap employers should follow.

If employers do discover that an applicant has been convicted of a crime, the guidance says they can help avoid Title VII liability by conducting an “individualized assessment” that considers:
  • The nature and gravity of the offense or conduct
  • The time that has passed since the offense occurred or a sentence was served
  • The nature of the job.
The guidance also offers the following best practices for employers that consider criminal record information when making employment decisions.
  1. Eliminate policies or practices that exclude people from employment based on any criminal record.
  2. Train managers, hiring officials and decision-makers about Title VII and its prohibition on employment discrimination.
  3. Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct. The policy should require identifying essential job requirements and the actual circumstances under which the jobs are performed, along with specific criminal offenses that may demonstrate unfitness for performing the jobs.  
  4. Train managers, hiring officials, and decision-makers on how to implement the policy and procedures consistent with Title VII.
  5. When asking questions about criminal records, limit inquiries to records for which exclusion would be job related for the position in question and consistent with business necessity.
  6. Keep information about applicants’ and employees’ criminal records confidential. Only use it for the purpose for which it was intended.
Advice: Now is the time to review how you use criminal background checks in your application and hiring processes. Can you say with certainty that they would satisfy and EEOC investigator? If not, it’s time to talk to your attorney.

Note: The EEOC has prepared and question-and-answer document about its criminal history guidance. Click here to read it.

Like what you've read? ...Republish it and share great business tips!

Attention: Readers, Publishers, Editors, Bloggers, Media, Webmasters and more...

We believe great content should be read and passed around. After all, knowledge IS power. And good business can become great with the right information at their fingertips. If you'd like to share any of the insightful articles on BusinessManagementDaily.com, you may republish or syndicate it without charge.

The only thing we ask is that you keep the article exactly as it was written and formatted. You also need to include an attribution statement and link to the article.

" This information is proudly provided by Business Management Daily.com: http://www.businessmanagementdaily.com/31341/eeoc-urges-caution-on-criminal-background-checks "

{ 2 comments… read them below or add one }

Mike S May 6, 2012 at 12:54 pm

The EEOC’s new guidelines will have a significant impact on employers. Pre-employ attorneys and compliance experts are working to provide answers to your questions about EEOC guidance changes. Visit http://portal.pre-employ.com/eeoc-report.php to get Pre-Employ’s findings, analysis and direction on establishing best hiring practices based on the new EEOC Enforcement Guidance.


david s. May 4, 2012 at 3:21 pm

Good article. Thanks. Here’s a solid overview of Individual Assessments – demonstrations/info about applicants with criminal backgrounds they can provide to an employer. A lot of factors employers must consider re: applicant criminal backgrounds – not just that they have one: http://hr.pre-employ.com/eeoc-guidance-biggest-change/


Leave a Comment