Have Questions About Employment Criminal Background Checks and Being EEOC Compliant?
16 Jan 2018
It’s a common question from both employers and job seekers: Does a criminal record automatically disqualify a candidate from employment? If you answered yes, you’re incorrect.
A criminal record does not automatically disqualify a candidate from employment. In fact, The Equal Employment Opportunity Commission (EEOC) has sued companies for doing this, claiming they violated Title VII of the Civil Rights Act of 1964.
An estimated one in four Americans of working age have some kind of criminal record. Finding a job with a history of arrests and/or convictions can be difficult. However, not all crimes are equal and employers must understand this. Furthermore, just because a record exists, it isn’t necessarily grounds for automatic dismissal. You may have to do some additional investigation and weigh your options.
It’s not illegal for an employer to ask questions about an applicant’s background, including criminal history, but some states and cities have special rules on when and how you can inquire about this information. For example, the “ban the box” movement is growing, and a number of states do not allow employers to use a checkbox on applications that ask candidates if they have a criminal record.
“Any time you use an applicant’s or employee’s background information to make an employment decision, regardless of how you got the information, you must comply with federal laws that protect applicants and employees from discrimination. That includes discrimination based on race, color, national origin, sex, or religion; disability; genetic information (including family medical history); and age (40 or older),” according to the EEOC.
The majority of employers choose to run an employment criminal background check and should be aware that laws are enforced by the EEOC. The most important thing to remember is to treat everyone equally throughout the hiring process. For example, it’s illegal to run an employment criminal background check only on people of a certain race. Doing so would clearly be evidence of discrimination and that would be grounds for a lawsuit by the EEOC, which can come with heavy fines and expenses, not to mention the potential of a tarnished brand reputation.
The EEOC states: “Take special care when basing employment decisions on background problems that may be more common among people of a certain race, color, national origin, sex, or religion; among people who have a disability; or among people age 40 or older. For example, employers should not use a policy or practice that excludes people with certain criminal records if the policy or practice significantly disadvantages individuals of a particular race, national origin, or another protected characteristic, and does not accurately predict who will be a responsible, reliable, or safe employee. In legal terms, the policy or practice has a ‘disparate impact’ and is not ‘job related and consistent with business necessity.'”
There are many examples of EEOC lawsuits regarding discrimination based on criminal records. One to note started in 2008 when BMW switched contractors at a production facility in Spartanburg, South Carolina. The switch required the new contractor to perform a criminal background screen on all existing employees who re-applied to continue working in their positions at BMW. At that time, BMW’s criminal conviction record guidelines excluded from employment all persons with convictions in certain categories of crime, regardless of how long ago the employee had been convicted or whether the conviction was for a misdemeanor or felony.
According to the EEOC, after the criminal background checks were performed, BMW learned that approximately 100 incumbent workers at the facility, including employees who had worked there for several years, did not pass the screen. Allegedly, 80 percent of the incumbent workers disqualified from employment as a result of applying BMW’s guidelines were black. Following an investigation, the EEOC filed suit alleging that blacks were disproportionately disqualified from employment as a result of the criminal conviction record guidelines. The EEOC sought relief for 56 African-Americans who were discharged.
The result? BMW voluntarily changed its guidelines, and in 2015 the company agreed to pay a total of $1.6 million to resolve the litigation and two pending charges related to the company’s previous criminal conviction record guidelines that had been filed with the EEOC. BMW also offered employment opportunities to the discharged workers in the suit and up to 90 African-American applicants who BMW’s contractor refused to hire based on the previous conviction record guidelines.
This expensive and time-consuming mess could have easily been avoided by BMW by implementing fair and detailed criminal conviction record guidelines earlier on. While BMW is a large enough company to bounce back from the financial impact and hit to brand image, smaller companies may not be so fortunate. An SMB finding itself in hot water with the EEOC may go under if facing a lawsuit of such magnitude.
Yes, it’s always wise to run employment criminal background checks, but make sure you are being fair and EEOC compliant. After running a check, consider the nature of the offense and the time that has passed since the offense occurred. Something that happened decades ago may not be as concerning as something that occurred just last year.
What’s more, keep in mind an arrest record does not establish that a person engaged in criminal conduct; only a conviction demonstrates that. Arrest records may also be inaccurate or incomplete. Do not use arrest records solely as your basis for dismissal or disqualification from employment.
If you have questions after you run an employment criminal background check through Trusted Employees, feel free to ask. As experts in the background check industry, they know the ins and outs of being EEOC compliant and are happy to help you as needed.