For many employers, criminal history checks have become a standard part of the pre-employment screening process. Since the turn of the new millennium, an increasing amount of employers have relied on leveraging criminal history checks during their hiring cycles. But, it is critical for every employer to understand the legal parameters around using criminal history checks so that they do not risk being subjected to an employment discrimination lawsuit. In particular, they need to become very familiar with the U.S. Equal Employment Opportunity Commission’s (EEOC) 2012 Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions.
The EEOC created the Guidance in an effort to consolidate and update policy statements and manuals that the agency had previously published to teach employers, who were using arrest or conviction records in employment decisions, how to comply with Title VII of the Civil Rights Act of 1964. The EEOC devised the Guidance to serve as a source “for employers, employment agencies, and unions covered by Title VII; for applicants and employees; and for EEOC enforcement staff.”
The Guidance aims to help employers understand the differences between arrest and conviction records. In addition, it reviews disparate treatments and disparate impact analysis under Title VII. The Guidance also provides best practices for employers on issues related to hiring and Title VII.
Although the Guidance is intended to serve as the foundation for guiding employers on how to handle arrest and conviction records, they must also always consider their relevant state and local laws. That being said, the Guidance clearly states that Title VII does preempt any state or local laws that “purport to require or permit the doing of any which would be an unlawful employment practice under Title VII.”
Yet, it should be noted that many states, cities and counties have used the Guidance when drafting legislation and ordinances aimed at providing gainful employment opportunities for individuals with criminal records.
The Guidance is also meant to deter employers who conduct criminal history checks strictly for elimination purposes. Granted, criminal history checks serve as a very helpful resource for those employers who are just looking to fill positions that require a clean record. But, there are other employers who disturbingly delve too deep into an applicant’s history for unrelated reasons.
The Guidance emphasizes that pre-employment screening background checks should only be done for job openings that are critical to the operation of the organization. If a conviction is found, the applicant should not be ruled out. Instead, they should be granted an opportunity to undergo an individualized assessment.
Furthermore, HR departments should refer to the Guidance on how to best comply with Title VII during the interview process. They should only ask probing questions that directly relate to the advertised job opening. What is more, employers are directed to only consider criminal history, or related information shared by a candidate, when it deems the them unfit for the requirements of the job.
Even though the Guidance is not law, efforts to enforce its guidelines as a legal basis are taking shape. With the adoption of new laws based on these guidelines, hiring practices will change.
For more information on criminal history checks and employment screening programs, please see Things to Consider About Employment Screening Programs.
Disclaimer Statement: All information presented is for information purposes only and is not intended to provide professional or legal advice regarding actions to take in any situation.
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