On April 25, 2012, the U.S. Equal Employment Opportunity Commission (EEOC or Commission) issued its Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 reinforcing and adding stronger restrictions on the use of background checks by employers.
“Wait, I thought background checks were handled by the Fair Credit Reporting Act?” And you would be correct; the FCRA does define the proper methods for use of background checks in employment situations. I have outlined that proper method both here and here and here. But let’s be honest with each other. We all know of companies where Management or Ownership says “I don’t want anyone who has been arrested working at my company. Where there is smoke there is fire.” And thus someone who has an arrest on their record does not get hired. They are not told that, they are told that “a more qualified candidate was hired.” This not only violates the FCRA but according to the EEOC that action may also violate the EEO laws.
In the FAQ piece the EEOC produced they answer the question “How is Title VII relevant to the use of criminal history information?” by saying:
- There are two ways in which an employer’s use of criminal history information may violate Title VII (“disparate treatment discrimination”). First, Title VII prohibits employers from treating job applicants with the same criminal records differently because of their race, color, religion, sex, or national origin.
- Second, even where employers apply criminal record exclusions uniformly, the exclusions may still operate to disproportionately and unjustifiably exclude people of a particular race or national origin (“disparate impact discrimination”). If the employer does not show that such an exclusion is “job related and consistent with business necessity” for the position in question, the exclusion is unlawful under Title VII. (My emphasis)
They also pointed out in the FAQ that:
National data supports a finding that criminal record exclusions have a disparate impact based on race and national origin. The national data provides a basis for the Commission to investigate Title VII disparate impact charges challenging criminal record exclusions.
A policy or practice that excludes everyone with a criminal record from employment will not be job related and consistent with business necessity and therefore will violate Title VII, unless it is required by federal law.
The EEOC also included in Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 guidelines on Employer Best Practices. The major one is:
“Eliminate policies or practices that exclude people from employment based on any criminal record.”
You ready to implement that one? How about this one? Their guidance on developing a policy includes:
- 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.
- Identify the criminal offenses based on all available evidence.
- Determine the duration of exclusions for criminal conduct based on all available evidence.
- Include an individualized assessment.
- Record the justification for the policy and procedures.
- Note and keep a record of consultations and research considered in crafting the policy and procedures.
Oh, and it is necessary to provide training to all managers and supervisors on these new policies and procedures.
Almost makes you want to avoid the time and expense of doing background checks doesn’t it. But that is not something I recommend. You do need to use them you just need to realize there is an additional burden of more work if you do use them.
Which way are you going to go?
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