Do You Screen Applicants for Criminal Backgrounds? EEOC explains how to avoid negligence and discrimination when doing background screening. What if one of your employees is caught in criminal activity – white-collar bribery, embezzlement, or worse yet, violent assault or murder? And what if you find out it was a repeat offense—a skeleton that would have popped out of the closet if you’d run a criminal background check prior to hiring? If this ever happened, you would have to deal with the emotional and financial fallout, which could include legal suits against your organization for “negligent hiring." Many employers seek to avoid such nightmares by screening potential employees for criminal backgrounds.
In 2010, 73% of respondents to a Society of Human Resources Management survey (mostly from large companies) reported they screen every job candidate, and 19% more screened selectively, based on the type of position. Done properly, employment screening can protect your organization and its employees and stakeholders from harm.
The Equal Employment Opportunity Commission (EEOC) administers most national anti-discrimination laws, including Title VII of the Civil Rights Act of 1964. In April 2012, EEOC revised and reissued its employee screening guidelines for employers. This new guidance (Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.) recounts 25 years of previous guidance and court decisions, and sets out “employer best practices” for background screening. At the most basic level, these guidelines follow EEOC’s general approach that any restrictions must be “job-related and consistent with business necessity” in order to be lawful.
How employers can go wrong
Improper pre-employment background screening can create liability for unlawful discrimination against job applicants. Blanket exclusions are likely to be discriminatory:
• Bans based on arrest records negatively affect people who were never convicted of a crime and are legally innocent of wrongdoing (illegal “disparate treatment” of different groups of innocent people).
• Bans based on convictions are statistically more likely to affect Blacks and Latinos, who have much higher conviction rates than Caucasians (illegal “disparate impact” discrimination). The likelihood that such bans are discriminatory increases unless they’re carefully tailored, since:
- bans based on prior convictions may discriminate if they cover crimes insufficiently relevant to job activities you want performed, and;
- bans that reach back too many years ignore the possibility of rehabilitation and may punish youthful indiscretions.
EEOC’s “Best Practices” for how employers can screen properly
EEOC concludes its new guidance by offering “best practices” for employers to follow when doing criminal background checks, in order to minimize possible liability for discrimination. If you incorporate these into your screening policies and practices, you should be able to protect yourself adequately against the risk of criminal employees, without getting sued.
The following checklist translates EEOC’s best practices for employment screening into questions employers should ask themselves.
Developing a Policy
Have I created an employment screening policy that meets EEOC’s standard for “job-related and consistent with business necessity?”
• Eliminate policies or practices that exclude people from employment based on any criminal record.
• Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct.
• Identify essential job requirements and the actual circumstances under which the jobs are performed.
• Determine the specific offenses that may demonstrate unfitness for performing such jobs.
• Determine the duration of exclusions for criminal conduct based on all available evidence.
Does my policy ensure an individualized assessment of each job applicant, applying these criteria?
• Limit your inquiries to job related information pertinent to the position, and consistent with business necessity.
Provide trainingAre the personnel involved in hiring informed about legal responsibilities to avoid discriminatory policies, questionnaires and interview questions?
• Train managers, hiring officials, and decision-makers about Title VII and its prohibition on employment discrimination, and how those relate to criminal background checks.
Are these personnel trained in my employee screening policy and procedures, and how to follow them?
Document activities
Do my policy and procedures provide adequate documentation to demonstrate that personnel involved in hiring follow them?
• Record the justification for the policy and procedures.
• Note and keep a record of consultations and research considered in crafting the policy and procedures.
Do my policy and employee screening procedures keep these activities and records confidential?
• Keep information about applicants’ and employees’ criminal records confidential. Only use such information for the purpose for which it was intended.
You will find the detailed guidance, and a shorter “Questions and Answers” document, on EEOC’s Enforcement Guidance webpage at: www.eeoc.gov/laws/guidance/enforceme criminal background check.
About the Author
Jon Elliott is President of Touchstone Environmental and has been a major contributor to STP’s product range for over 25 years. He was involved in developing 16 existing products, and writes quarterly updates for them all.
Mr. Elliott has a diverse educational background. In addition to his Juris Doctor (University of California, Boalt Hall School of Law, 1981), he holds a Master of Public Policy (Goldman School of Public Policy [GSPP], UC Berkeley, 1980), and a Bachelor of Science in Mechanical Engineering (Princeton University, 1977).
Mr. Elliott is active in professional and community organizations. In addition, he is a past chairman of the Board of Directors of the GSPP Alumni Association, and past member of the Executive Committee of the State Bar of California's Environmental Law Section (including past chair of its Legislative Committee).
You may contact Mr. Elliott directly at: tei@ix.netcom.com.