To Check or Not to Check? Straight Talk about EEOC Guidelines for Conducting Criminal Background Checks

The Internet has made background checks easier than ever–and many employers are taking advantage of the opportunity. According to a survey by the Equal Employment Opportunity Commission (EEOC), 93 percent of employers conduct background checks in some instances.

While background checks may seem to be a valuable tool for spotting resume fraud or heading off negligent hiring claims, they can also land a company in hot water if an applicant claims the company used its criminal background check policy to discriminate unfairly. The EEOC recently released a warning that it would vigorously prosecute claims of discrimination based on background checks. With the risk of a negligent hiring suit on one side and the risk of a discrimination suit on the other, how can a company stay in compliance?

Here’s the good news. Along with the updated guidelines, the EEOC has provided an outline of protective measures for companies. This guidance provides a “roadmap” for conducting background checks that reveals important information about candidates while also complying with EEOC rules. When implemented broadly, this approach also helps increase the overall quality of recruits and hires.

From Three to Eleven: Factors Companies Must Consider When Performing Background Checks

In Green v. Missouri Pacific Railroad Company, the U.S. Court of Appeals for the Eighth Circuit laid out three factors companies must consider when evaluating an applicant’s criminal record. They are:

• The nature and seriousness of the offense or conduct;
• The time elapsed since the conviction and/or the completion of the sentence; and
• The nature of the job sought.

In its updated guidance, the EEOC reaffirmed these three factors. They still apply, and hiring managers should still keep them top-of-mind when evaluating applicants’ criminal backgrounds. However, the EEOC also recommended that companies consider eight additional factors:

• The facts or circumstances surrounding the offense or conduct;
• The number of offenses for which the person has been convicted;
• The applicant’s actual age when the conviction occurred and when the sentence was completed;
• Evidence that the applicant has performed similar work since his or her conviction without any known criminal incidents;
• How long and consistently the applicant has been employed in the past, both before and after the conviction;
• Tasks the applicant has completed to rehabilitate him or herself, like seeking additional education or training;
• Employment references, character references, and similar information regarding the applicant’s fitness for a particular position; and
• Whether the applicant is bonded under a local, state, or federal bonding program.

While the EEOC doesn’t require the eight additional factors to be considered, they provide a valuable framework for conducting criminal background checks. By implementing EEOC best practices based on these guidelines, companies can not only get the information they need, but also improve the quality of their recruiting and hiring decisions.

Implementing the EEOC Guidelines
How can a company use the EEOC guidelines effectively when dealing with criminal background checks? Consider the following suggested “best practices” from the EEOC:

Creating a Criminal Background Check Policy

1. Throw out blanket policies. A company’s criminal background check policy should not exclude people from employment based on any criminal record. The EEOC argues that such blanket policies have a discriminatory impact on racial groups that face disproportionately high arrest and conviction rates–which means an employer who uses such a policy leaves itself exposed to a discrimination lawsuit.
2. Create job descriptions. Create a written job description for each position within the company. Work with managers to create written job descriptions for the positions they supervise, as well as for their own positions. Each job description should cover two topics: the essential functions of the position, and the real-world conditions under which it is performed.
3. Evaluate the need for a criminal background check in the context of each job described. For each written job description, consider what specific criminal offenses, if any, may demonstrate that an applicant is not fit for the position. For instance, a conviction for theft or embezzlement may make an applicant unfit for a job that requires the person to handle the company’s finances.

Applying a Criminal Background Check Policy

1. Put the recommended guidelines first. Even if an applicant’s criminal history appears incompatible with a particular job description, consider the applicant according to the EEOC’s guidelines rather than striking him or her immediately, unless state or federal law requires otherwise.
2. Limit questions about criminal records. While employers are allowed to ask applicants about criminal records, questions should be limited only to records that directly affect the job for which the person is applying. Questions should also be limited solely to business necessity.
3. Write it down. Create a written individualized assessment of each candidate’s fitness for a position, based on the EEOC guidelines. These records can provide a valuable “paper trail” if a lawsuit arises.
4. Maintain confidentiality. Keep criminal records information confidential, and use it only for intended purposes.
5. Train managers. Managers, hiring officials, and decision-makers should all be familiar with the requirements of Title VII of the Civil Rights Act, including its prohibitions on employment discrimination.