How NOT to Violate the EEOC Guidelines

The regulatory climate of the use of criminal background checks is changing. It’s moving toward limited inquiries and utilizing only certain aspects of candidates’ criminal histories to make hiring decisions. The Equal Employment Opportunity Commission’s (EEOC) guidelines and some states are taking the position that a larger majority of those arrested and convicted of crimes are minorities and therefore, the use of a candidate’s criminal history could be discriminatory, violating Title VII’s discrimination laws.

Employers are now obligated to re-think the use of criminal history. Instead a broad policy for an entire company or organization, criminal history should be used on a job-by-job basis with differing requirements for certain positions within an organization.

Employers may feel uncertain what these guidelines mean to them. We’d like to offer a few points to help as you rewrite your employment screening policy:

Only Screen for Relevant Information

As you consider what types of checks to use for certain job positions, consider the work the candidate will be expected to do.

Criminal history checks should be comprehensive, but the use of those comprehensive checks should be procedural to avoid discrimination claims.

  • Identify the job description prior to hiring
  • Determine types of criminal information the company will look for
  • Determine how many years' history will be used
  • Ensure the same level of background check is performed for every applicant for that position

 Credit history is a particularly touchy area because minorities and females are more adversely affected than any other demographic.  Credit history can be properly considered when the information is essential to job position.

  • Financial institutions
  • Positions with access to financial assets
  • Positions with access to confidential information

Assess whether the information discovered in the credit history is indicative to financial stress as such stress can lead to embezzlement or fraud.

  • Identify the job positions with direct correlation between job duties and risk created by financial stress
  • Allow applicants to explain their situation and any negative information on their credit history
  • Ensure the same level of credit check is being performed for every applicant in that position 
  • Document the company's rationale for utilization of credit checks and why the company needs credit information for the particular job postion(s) as well as the business risks associated with an applicant facing financial stress

Determine the Validity of the Background Check

It is possible that a background screening is not required for ALL positions in your organization. Your company should consider:

  • The nature of the duties of the position
    • Do employees have access to private company information?
    • Do employees have access to confidential client/guest information?
    • Do employees have access to cash or company credit card?
  • The environment in which work is performed
  • Exposure to clientele or staff
    • Do employees have access to guest room, property or work with guests?

Once the validity of your screening programs is well defined, your company should document the need for criminal checks by job position and tailor the assessment of each individual applicant based on those needs.

Consider:

 

  • The number of offenses
  • The nature and gravity of the offenses
  • Surrounding facts of the offense, such as age
  • Passage of time since the offense was committed
  • Employment history since the offense was committed
  • References provided by the applicant