Two major U.S. employers are now the subjects of a lawsuit filed by the Equal Employment Opportunity Commission (EEOC) for implementing and utilizing a criminal background policy that resulted in employees being fired and others being screened out for employment. A third employer recently paid $3.1 million to settle charges of discrimination for using criminal background checks to screen out job applicants, some never convicted.
Background checks by employers are on the rise with the growth of online databases and low-cost records searches. According to a 2010 survey by the Society for Human Resource Management, about 73 percent of all U.S. employers conduct criminal background checks on all job candidates. Another 19 percent do so for selected job candidates.
On April 25, 2012, the EEOC issued updated guidance for employers on the use of arrest and conviction records. If your company conducts background checks, remember these seven tips:
Develop a policy for screening applicants and employees for criminal conduct and train your managers, hiring officials and decision-makers how to implement the procedures. Identify essential job requirements and the actual circumstances under which the jobs are performed. Determine the specific offenses that demonstrate unfitness for performing such jobs. Identify the criminal offenses and the duration of exclusions for criminal conduct based on all available evidence. Include an individualized assessment. Record the justification for and note any consultations and research used to craft the policy.
Think carefully before asking about criminal records on job applications. In some states like Michigan and Minnesota it’s illegal. If you must, limit inquiries to records for which exclusion would be job related for the position in question and consistent with business necessity. And remember, keep information about applicants’ and employees’ criminal records confidential and only use it for the purpose for which it was intended.
Give applicants a chance to explain reports of past criminal misconduct before rejecting them for employment. Current standards already require employers to consider the age and seriousness of an applicant’s conviction record and its relationship to specific job openings. According to the commission, the report also may be inaccurate, completely unrelated to the job, the record expunged or the candidate may show they are fully rehabilitated.
Blanket employment bans based on criminal history can be discriminatory. Employers should develop a written policy for screening applicants and employees for criminal conduct that identifies essential job requirements and specific offenses that demonstrate unfitness. These policies also should include an individualized, job-related assessment consistent with business necessity. Remember, even though laws in some states require day care providers, nurses or teachers to have background checks, according to the EEOC a company is not shielded from liability under federal discrimination laws just because it complies with state laws.
Recognize the differences between arrest and conviction records. An arrest does not necessarily establish that criminal conduct has occurred and an arrest without a conviction is not generally an acceptable reason to deny employment. An exclusion based on an arrest that is not job related or consistent with business necessity could be viewed as a violation of the Civil Rights Act. However, an employer may make an employment decision based on the conduct underlying an arrest if the conduct makes the individual unfit for the position in question. In contrast, a conviction record usually serves as sufficient evidence that a person engaged in particular conduct. In certain circumstances, however, there may be reasons for an employer not to rely on the conviction record alone when making an employment decision.
Treat everyone the same when doing background checks. A violation may occur when an employer treats criminal history information differently for different applicants or employees, based on their race or national origin (disparate treatment liability).
Is a background check absolutely necessary qualification for the job? An employer’s neutral policy (e.g., excluding applicants from employment based on certain criminal conduct) may disproportionately impact some individuals protected under Title VII, and may violate the law if not job related and consistent with business necessity (disparate impact liability).
For example, in the EEOC’s most recent suit against BMW, the commission alleges a second screening of employees brought on after working for a former contractor disproportionately screened out African Americans from jobs, and that the policy was not job related and consistent with business necessity.
In Illinois, the Chicago EEOC filed a lawsuit charging that Dollar General conditions all of its job offers on criminal background checks, which results in a disparate impact against blacks.
Both lawsuits were brought under Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race and national origin as well as retaliation.
The U.S. Equal Employment Opportunity Commission enforces federal laws prohibiting employment discrimination. Eliminating barriers in recruitment and hiring, especially class-based recruitment and hiring practices that discriminate against racial, ethnic and religious groups, older workers, women, and people with disabilities, is one of six national priorities identified by the Commission’s Strategic Enforcement Plan (SEP).
Don’t forget about the federal bonding program. Bonds help protect employers against employee dishonesty such as loss of cash or property valued up to the bond amount. Idaho’s federal bonding program provides a free six-month fidelity bond of $5,000 – $10,000, providing greater security for your company when an employee is not eligible for commercial bonding because he or she has poor credit or is an ex-offender, welfare recipient or a dishonorably discharged veteran.