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The AR Group

When Background Checks Backfire

By Julie Morris

Hiring decisions directly affect not just the success of our businesses but more and more can have safety implications on our businesses. ?One would think that it would be increasingly common for employers to rely on background checks as a screening tool in the application process ? to screen out applications with undesirable marks or ?records?, after all isn?t it reasonable to infer that these individuals might have a negative impact on our business? image, security, goals, or overall objectives? ?Perhaps.? However, proceed with caution.

Just last year, the Equal Employment Opportunity Commission (EEOC) placed ?eliminating barriers in recruitment and hiring? as its top priority in its most recent ?Strategic Enforcement Plan? (?The Plan?). ?The Plan, approved for Fiscal Years 2013 ? 2016, indicates that the agency will renew enforcement efforts with regard to pre-employment tests, background checks, date-of-birth inquiries, and other ?screening tools? that restrict the application process or ?channel? individuals into specific jobs due to their status in a particular group.

More recently, on June 11, 2013, the EEOC filed two separate lawsuits against Dollar General and BMW, alleging that the employers? criminal background check policies violated Title VII of the Civil Rights Act of 1964. Title VII prohibits discrimination against a job applicant or employee because of the person?s race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information.? Although having a criminal background or a ?record? is not in and of itself a protected trait under Title VII, the EEOC has cautioned that an employer?s criminal background check policy could result in disparate treatment or have a disparate impact on a protected class of individuals.

Significantly, in a typical “disproportionate impact” case, intent to discriminate is entirely irrelevant. ?What this should signify to employers is that outright rejection of an applicant or employee based upon criminal history is no longer acceptable, except in very limited circumstances. ?Therefore, employers should:

1)?? Eliminate policies or practices that screen applicants based solely on the existence of a criminal record;

2)?? Train managers on proper hiring techniques allowed by the law;

3)?? Develop specific and narrowly tailored screens based on the specific job offered; and

4)?? Refrain from asking applicants questions about criminal records that would not be relevant to screening for the job sought.

To the extent that an employer relies on criminal background information, employers should consider the information gleaned from the background check cautiously and in light of the following guidelines:

1)?? Evaluate each position independently, identifying critical job requirements and circumstances under which the job will be performed;

2)?? Consider the nature of the conviction, particularly in light of the job and job functions in question (relevancy); and

3)?? Give due consideration to the age of the conviction.


Smart Tip: The use of criminal background checks can be an effective risk management tool, however, they must be done carefully and in compliance with EEOC?s guidance. ?An employer?s first defense to an EEOC violation is to operate and maintain a compliant policy.