How does the EEOC view an employer’s use of criminal records for employment background checks? Well, let me see if I can take 20 years of legalese and put it into plain language. Not an easy task. And keep in mind that this may all change again on July 26, 2011 when the EEOC Full Commission meets to discuss the use of criminal records for employment screening. We will be monitoring this meeting closely.
As you know, the EEOC enforces, among other things, Title VII of the Civil Rights Act of 1964 which prohibits employment discrimination on the basis of race, color, religion, sex or national origin.
Ok, so what does that have to do with criminal records? The EEOC has always frowned on the practice of denying employment based solely on a criminal conviction. Why? Because certain minorities are “convicted at a rate disproportionately greater than their representation in the population.”
To stay in step with the EEOC your first step is to justify your business necessity through a 3 step process:
- What is the nature and gravity of the crime?
- How much time has passed since the conviction or completion of the sentence; and
- What is the position being sought or held?
The EEOC does not prohibit the use of pre-employment inquiries about an applicant’s criminal history. However, it does prohibit the use of discrimination:
- Disparate Treatment: Intentionally deny an employment position because of the race of the applicant. E.g. A minority applicant is denied employment but a white applicant is hired with the same criminal record.
- Disparate Impact: The blanket use of criminal records disproportionately excludes certain minorities.
So where does that leave us?
- We should have policies in place that are founded on the EEOC’s business necessity requirements.
- A criminal record alone should not cause us to deny employment. The 3 prong approach should be applied to all polices and hiring decisions.
The bottom line is the use of criminal records is a critical component of employment background checks. The key is to create sound policies based on your business necessities. Articulate. Articulate. Articulate.
Contact us today if you need assistance in complying with the EEOC.