The Equal Employment Opportunities Commission has issued new enforcement guidance on employers' use of criminal history ...
When designing an effective pre-employment background check protocol, employers must know how the Equal Employment Opportunity Commission (EEOC) might impact the process. The EEOC issues regular guidance concerning background checks for employment purposes. Failure to adhere to that guidance may risk putting your business or organization on the EEOC’s radar, leading and other legal trouble.
Unfortunately, the EEOC criminal background check policy is not as straightforward as the Fair Credit Reporting Act (FCRA). Where the FCRA puts forth several requirements that every employer must follow when using background checks, EEOC guidance can be more specific to some employers and have more exceptions. Still, the commission plays a significant role in regulating background checks in the United States and is an important player to consider when designing pre-employment vetting policies.
Another factor that can make EEOC guidance confusing to some employers is that the organization and its policies have not always had much bearing on what a company can or cannot do with background checks. While the EEOC was first established in 1965, the commission’s role in regulating background checks is a much more recent development. The EEOC’s ability to have any say on pre-employment background screening originated in the 1980s, more than 20 years after the commission was formed.
It is important to note that the EEOC does not ban background checks and never has, nor does it bar employers from making hiring decisions based on background check findings. Instead, EEOC guidance limits how employers use background checks to inform hiring choices.
For instance, since 1987, the EEOC has held that it is unlawful for employers to have a background screening policy that disproportionately affects minorities. In other words, employers cannot utilize background screenings in a way that would disadvantage minority groups more than other demographics. It goes without saying that a business cannot require more in-depth background checks for a Black candidate than it would use for a Caucasian applicant. However, the disproportionate impact reaches deeper than overt examples of discriminatory practice.
For instance, if an employer were to establish a policy disqualifying any candidate with a criminal record from job consideration, that policy would disproportionately impact minority groups. Because minorities are statistically more likely to be convicted of a crime, the policy puts an extra disadvantage in their path to finding a job. As a result, this type of background check policy would be illegal under EEOC guidance. A company found practicing that type of policy could be sued by the EEOC for disparate impact.
Another core of EEOC background checks guidance is the idea of “valid business reason.” The EEOC holds that employers should not take adverse action against any candidate based on background screening information unless they have a valid business reason to do so. Said another way, if an employer rescinds a job offer or disqualifies a candidate based on a background check, they must explain why the candidate’s criminal background is relevant to the job at hand. In some cases, a candidate may have a criminal conviction on their record that is expressly relevant to the position they seek.
For example, a job seeker with drunk driving conditions is likely not a safe or reasonable hire for a job that involves extensive driving. The same person, however, may be perfectly qualified for an office job that has nothing to do with operating a motor vehicle. The first employer has a valid business reason to disqualify the candidate, but the second one doesn’t.
In determining relevance and valid business cause, employers should consider the nature of the criminal offense and other factors. How long ago did the crime occur? How old was the candidate at the time of the conviction? Have there been any repeat offenses since?
These details can help an employer determine how likely a criminal conviction will impact a candidate’s fitness for the job. Convictions from decades ago or that occurred in the candidate’s youth are less relevant because they are less current. An otherwise clean record, meanwhile, may speak to the narrative that the candidate made a big mistake once but has been a law-abiding citizen otherwise.
Newer convictions, or a history of multiple crimes or repeat offenses, should be given extra weight and relevance, as they may speak more to the person’s current character or overall behavior pattern. All these details can be considered when determining whether a business has a valid reason to disqualify a candidate based on background check findings.
The EEOC’s guidance didn’t mean as much 30 or 35 years ago when most background checks remained relegated to the upper echelons of management. In those days, not as many employers used background checks and the ones that did mostly used them for higher-level hires. Entry-level or mid-level jobs were largely unaffected by background screenings, which were also essentially unchanged by the EEOC’s guidance.
As screening has spread from upper management to entry-level positions, the EEOC has revisited its position and expanded upon its guidance. Now, almost all employers must at least consider the EEOC when devising their employee vetting policies.
The best way for employers to ensure EEOC compliance is to understand what lies at the core of the commission’s background check guidance. Specifically, the commission’s guidance primarily revolves around criminal background checks. While employers should still be thoughtful about using other types of checks – such as driving records or credit histories – EEOC guidance is primarily concerned with criminal record matters.
The EEOC’s policy states, in part:
“[A]n employer's policy or practice of excluding individuals from employment based on their conviction records has an adverse impact on Blacks and Hispanics in light of statistics showing that they are convicted at a rate disproportionately greater than their representation in the population. Consequently, the Commission has held and continues to hold that such a policy or practice is unlawful under Title VII in the absence of a justifying business necessity.”
This passage is central to EEOC criminal background check policy and is the most critical aspect for employers to understand to remain compliant with EEOC guidance. Below, we will dissect the key elements of this rule so that employers know how to use it as the key to developing EEOC-compliant background check policies.
When it mentions how background check policies can have an “adverse impact on Blacks and Hispanics,” the EEOC is referring to how those policies can disproportionately impact minority groups. In essence, denying candidates job consideration because of criminal history can be discriminatory, given that minorities are statistically more likely to have criminal records. As a result, a hiring policy too driven by criminal history consideration can have what is called an “adverse impact” on minority applicants.
However, the mere possibility of adverse impact is not enough to strip employers of the right to vet their applicants. Hiring managers use criminal background checks because criminal records can raise red flags about people who might be risky to hire. If a candidate has a violent past or a history of embezzlement, the employer has the right to that information before hiring. This right is not changed or nullified due to EEOC guidance on background checks. Instead, the commission asks that employers be more thoughtful in how they use this information.
To that effect, the EEOC policy continues:
“Where [an applicant or employee claims that the] employer failed to hire or terminated the employment of the [applicant or employee] as a result of a conviction policy or practice that has an adverse impact on the protected class to which the [applicant or employee] belongs, the [employer] must show that it considered these three factors to determine whether its decision was justified by business necessity:
In other words, employers should be wary about simply disqualifying any candidate whose background check turns up a criminal conviction. Instead, employers should think critically about background check findings and decide how much bearing they have on the job at hand. What risk would hiring this person in this job pose to the company, its customers or clients, or its other employers? If there is a high or medium-high risk, the employer has reasonable justification for taking adverse action. However, if the risk is low or non-existent, the employer cannot justify adverse action and would risk EEOC noncompliance by rescinding a job offer.
The fundamental point here is that employers should be more nuanced in how they think about criminal records in hiring. A compliant EEOC criminal background check policy is one where employers consider each candidate and each piece of criminal history information on a case-by-case basis.
Said another way, having a blanket policy that disqualifies all candidates with criminal convictions violates EEOC guidance. This type of policy has no nuance and is sure to have a disparate adverse impact on minority groups.
Instead, if a background check shows a candidate’s criminal record, the employer should look at that record in detail. Of which crimes was the person convicted? How severe were those crimes? Were they misdemeanors or felonies? First-degree or third-degree? Is the offense specifically relevant to the job at hand? Did the offenses happen a year ago or a decade ago? Has the candidate satisfied all the conditions of their sentencing?
Asking these questions can help employers distinguish candidates who would be truly risky to hire and those who a rescinded job offer would stigmatize. It can also help employers avoid running afoul of the EEOC.
So, how can your business devise a background check policy that is compliant with Equal Employment Opportunity Commission guidance?
Simply put, your focus when using background checks to guide employment decisions should be on business necessity. You should create a screening policy that reflects your consideration of adverse impact and case-by-case decision-making. You should also be able to show that your policy satisfies your legitimate business interest while having less of an effect on any given protected class.
In general, when creating your background screening policy, it should be written in plain English, as though to be presented to a jury. You should document everything. If it’s not written down, it may as well not exist. Poor documentation of your EEOC compliance, even if you felt you were following the spirit of that guidance in the moment, may still put your business at risk for EEOC lawsuits. Keeping good records could save you tens of thousands of dollars simply by giving you a means of defending your business in court, should the EEOC ever come calling.
Typically, seven major steps should be taken to have a well-rounded and well-documented background screening policy. You can read about those seven steps in detail by downloading our white paper, The Seven Steps to Guide Employers on the EEOC’s Guidance on Pre-Employment Background Checks. Also, feel free to contact us if you need help devising an EEOC criminal background check policy for your organization.
Equal Employment Opportunity Commission guidance tends to be one of the most confusing parts of the background check policy for most employers. How can you establish compliant protocols if you don’t understand how the EEOC views background checks or what types of behaviors can trigger an EEOC lawsuit? Below, we offer succinct answers to some of the biggest questions about the EEOC and its criminal background check guidance.
In addition to this FAQ section, we invite you to use our extensive EEOC resources to gain a better understanding of what the EEOC is and why its guidance matters to your background check policy.
Per federal regulations, the definition of an equal opportunity employer is an employer “that pledges to not discriminate against employees based on race, color, religion, sex, national origin, age, disability or genetic information.” The Equal Employment Opportunity Commission exists to enforce anti-discrimination laws and to investigate claims of employment discrimination, which means the EEOC is there to make sure employers offer equal employment opportunities.
One area where the EEOC enforces federal laws on employment opportunities is background checks. Specifically, the EEOC holds that employers should not use background screenings in a way that adversely impacts minority groups or protected classes. The obvious pro of this guidance is that it helps create more equal employment opportunities for all people, regardless of race, ethnicity, or other factors. The major con is that many employers don’t necessarily recognize how background check utilization can lead to unintentional discrimination. An employer without much knowledge of the matter might establish a policy of disqualifying any candidate with a criminal record. That type of policy technically has a disparate impact on minorities, given that specific demographics are more likely to have criminal records than others. As such, an employer can feasibly run afoul of EEOC regulations without even meaning to do so. Therein lies the importance of a thoughtful, well-researched background check policy.
Discrimination in the workplace is an unfair practice that puts particular job seekers at a disadvantage for factors or characteristics that largely fall outside their control. Discrimination laws, including EEOC criminal background check policy, help prevent this type of discrimination, thereby ensuring that everyone has equal access to gainful employment regardless of who they are, where they come from, what they look like, and other factors.
If you are a job seeker and believe that an employer has discriminated against you, you can file a federal EEOC complaint. To learn more about filing a complaint, you should visit the EEOC website and read their tutorials on how to do so. However, key tips include having all the information on hand for the employer (name, address, telephone number) and a written description (including dates) of the events that you believe violated federal equal opportunity employment laws.
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