Is It Illegal to Use Criminal Background Checks in Hiring?

Posted by Jeanine Gagliardi on Thu, 07/19/2012 - 17:30

Prudent employers try to avoid hiring employees who may cheat, steal, or injure co-workers or customers. For this purpose, some businesses use criminal background checks in the hiring process. While there is no blanket ban on this practice, employers must ensure that their consideration of applicants’ criminal backgrounds in particular circumstances does not violate federal anti-discrimination law.

Title VII of the Civil Rights Act of 1964 precludes discrimination in employment based on, among other things, race. The Act bans facially biased employment practices. It also makes illegal an employment practice which, although neutral on its face, disproportionately impacts groups protected by the Act, unless the practice (1) is job related for the position in question and (2) consistent with business necessity.

Because arrest and incarceration rates for African American and Hispanic men are higher than for other groups, the EEOC deems hiring decisions based on criminal background to have a disparate impact. Accordingly, unless business necessity requires hiring someone with a clean criminal background, such practices violate the Act.

On April 25, 2012, the EEOC issued guidelines for employers who consider criminal records when making employment decisions. The EEOC instructs employers that they will be able to avoid liability for employment discrimination if:

(1) The employer develops a “targeted screen” that considers the nature of the crime, the time elapsed, and the nature of the job; and

(2) The employer provides individuals excluded by the screen with an opportunity for an individualized assessment to determine whether the policy is job related and consistent with business necessity in that individual’s case.

The EEOC recognizes that the individualized assessment, which is costly and time consuming for employers, may not be necessary to avoid liability in every circumstance. Its guidelines, however, do not provide a clear test for employers to determine in which circumstances the assessment is required.

Without such information, employers must be wary of choosing not to undertake an individualized assessment. At this point, the safest bet for any employer would be to provide applicants with the assessment suggested by the EEOC.

The take away: If you plan to make decisions based on criminal background, document whether and why particular background information is relevant to the job. For example, a DUI is different from embezzlement when it comes to screening applicants for the accounting department. Then, be sure to document the individualized assessment made of each candidate when such information is considered. Making such a record will help defend against any lawsuit alleging discrimination.

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