Is Your Employment Background Checks Policy Discriminatory?

employment background checksHave you reviewed your employment background checks policy recently?  Well, it might be a good time. And if you don’t have a background screening policy, it is past time to implement one.  Why?  Because criminal background checks are a hot button issue with the EEOC.

The EEOC met back in July 2011 in Washington DC and if I were to sum up the meeting in one sentence it would be that the proliferation of criminal background screening is to blame for high offender recidivism rates. We could open this up for debate but it does not matter.  This is the position and the direction the EEOC has been moving in for years.

Did you see how this impacted Pepsi recently?  An EEOC investigation determined that Pepsi’s use of arrest records, even if it was not job related, was discriminatory and adversely impacted more than 300 minority applicants.  Oh, I forgot to mention, Pepsi paid $3.1 million to settle.

The EEOC has been clear that employers should use a 3 step approach to using criminal records:

  • What is the nature of the crime?
  • How long ago was the crime committed?
  • How does the criminal record impact the employment position?

So I think we can clearly see that the EEOC would discourage the use of arrest records.  Primarily because research has shown that minorities are arrested at disproportionately higher rates than non-minorities.  Now, the EEOC has not disallowed the use of arrest records but would require a strong business necessity.

Also, if you have a zero tolerance criminal record policy then you might want to give it a little thought.  For example, a DUI conviction 10 years ago with no other criminal records may not be a big deal for a position that is not related to driving.   Now, it might be the cause of an adverse decision if they lied about it on their application or they are applying as a school bus driver.

The bottom line is your employment background checks policy should articulate that your adverse decisions are based on applicable laws and the use of a 3 step approach of defining a business necessity.  Make it clear that everyone with a criminal record is not denied employment solely because of their criminal background.