EEOC on Pre-Employment Background Checks

Pre-Employment Background checks: Many employers conduct some sort of screening on potential employees. Most screenings include a criminal background check component. There are many reasons employers perform criminal background checks: prevent negligent hiring suits, avoiding workplace violence / theft, as well as avoiding increased insurance costs. Of course most of the criminal background checks come back as “no record found.” Industry standard is approximately 80% of all subjects are clear.

But what exactly does the employer do (or should the employer do) when an applicant is found to have a criminal history?

EEOC re: Discrimination in checks: The Equal Employment Opportunity Commission (EEOC) has taken the position that if employment is denied across the board based on criminal history then the employer has engaged in disparate impact discrimination because it would disproportionately affect African-Americans and Hispanic candidates as they are disproportionately represented in the criminal justice system.

What EEOC wants employers to do: First, he EEOC requires that the employers have a policy in place to “accurately distinguish between applicants that pose an unacceptable level of risk and those that do not.” The first thing the EEOC tells employers to do is to allow the candidate with a “meaningful opportunity to explain” the criminal record. Meaningful would included a face to face meeting with the candidate where you, as the potential employer, would provide applicant an opportunity to review the criminal information discovered as well as an opportunity to provide you, the potential employer, with any information or a reasonable explanation that may aid you in making a hiring decision.

Secondly, consider if the criminal history is truly related to the job applicant is applying for. Although as an employer, you might think that any criminal history is relevent to the position you are offering, there are three things the EEOC wants considered: 1) nature and gravity of the offense 2) time passed since offense occurred and 3) nature of the job sought.

Finally: Employers who conduct background checks with a criminal background component should not use a criminal history as an automatic bar from employment. Per EEOC guidelines, candidates should be given a meaningful opportunity to explain the conditions surrounding the criminal record and the employer should consider the nature and age of the criminal offense.