In early June, the Equal Employment Opportunity Commission (EEOC) filed suits against two U.S. employers for their use of criminal background checks. While the law does not prohibit employers from obtaining criminal records for employment screening purposes, how they use the information they uncover could be discriminatory—especially if they follow blanket policies excluding all applicants with checkered pasts.
The first suit was against BMW, which the EEOC alleged used a criminal background check policy that was not job related and disproportionately screened out African American candidates. The policy had no time limit with regard to convictions and excluded all applicants with criminal records regardless of their age at the time of conviction, the nature of the crime, and the nature of the position for which they were applying.
The second suit was against Dollar General, which the EEOC alleged makes all job offers conditional on criminal background checks, again without considering the nature of the crime or the position for which the candidate has applied. The suit was filed after the company rescinded job offers from two African American applicants based on one background check with incorrect information and another showing an old controlled substance possession conviction—one that the applicant had already disclosed.
According to a survey by the Society for Human Resource Management, 69 percent of companies conduct criminal background checks as part of their pre-employment screening process. While 60 percent said that violent crimes would disqualify a candidate, about 25 percent also said nonviolent misdemeanors would influence their hiring decisions.
Unfortunately, the number of Americans with criminal records is quite high. According to the National Employment Law Project, one in four adults has arrest or conviction records. This includes arrests that didn’t lead to a conviction, convictions that didn’t result in jail time, and convictions for nonviolent crimes. If employment background checks uncover the information, some employers exclude applicants from job offers.
So what’s an employer to do? If you don’t conduct a criminal background check as part of your pre-employment screening process, you’re more vulnerable to negligent hiring lawsuits. If you use background check services that include a criminal records search, and you subsequently exclude a job applicant, you open yourself to a discrimination lawsuit.
The answer is to follow the guidelines of the EEOC.
- Remember, an arrest alone does not necessarily indicate the applicant has committed a crime.
- In the case of an arrest or conviction, you must consider the nature and severity of the crime
- You cannot exclude an applicant based on an arrest or conviction unless the nature of the crime is indicative of an inability to perform the duties of the position in question.
- You must consider the time that has passed since the arrest or conviction.
- You must give applicants a chance to explain the circumstances of their criminal records.
You should also be aware that some states have laws in place that limit the use of criminal records by employers. If you choose to use these records as part of your employment screening process, enlist the assistance of a background check service familiar with the regulations in your location.