Background Checks: Employers Beware
By Carrie Roelle

The struggling economy has employers receiving applications from an overwhelming number of job seekers. As a result, many employers are more carefully scrutinizing potential applicants by conducting criminal background checks. Background checks can minimize exposure to negligent hiring suits and maximize chances of hiring quality employees. However, using background checks incorrectly as a risk management tool can possibly expose employers to discrimination claims.

The Equal Employment Opportunity Commission (EEOC) has long viewed excluding individuals from employment because of a criminal conviction as unlawful discrimination under Title VII of the Civil Rights Act of 1964, unless the policy is justified by a business necessity. Statistics show that African-Americans and Latinos are convicted at a rate disproportionate to their representation in the population. As a result, the EEOC asserts hiring decisions based on criminal records could potentially have an adverse impact on these individuals and therefore be discriminatory.

Recently, the EEOC determined there was an increase in discrimination charges filed by job applicants claiming employers unfairly excluded them from employment based on information contained in background checks. Therefore, the agency decided to remind employers about practices that could lead to litigation. The EEOC advises employers to consider the following three factors in determining whether to screen out a candidate with a criminal conviction: (1) the nature and gravity of the offense; (2) the length of time that has passed since the conviction; and (3) the relationship of the conviction to the particular duties and responsibilities of the job in question.

Employers who continue to apply a blanket ban on hiring ex-offenders or who fail to use hiring criteria that take into account the nature of the offense and its relationship to the job face exposure to charges of race discrimination.

Given the EEOC’s increased focus on criminal background check policies, now is the time for employers to review their background check policies to ensure those policies are consistent with state and federal guidelines. Should you need assistance with this, please call a member of the KDDK Labor and Employment group.

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