Would Simon Cowell Show’s Background Check Decision Hold Up in Court?

background checksIf reality shows were held to the same EEOC standards as employers, would Simon Cowell’s reality show pass the test? British network ITV, which broadcasts the Cowell-created show “Red or Black”, decided to eliminate three contestants on basis of their criminal records.

As a Reuters news article reported, ITV dropped three contestants from a current show after it was discovered that the show’s first big winner had served time for assaulting a man. The casino-style game show airs twice nightly and features contestants going through a series of rounds, guessing between red and black in order to advance to the next round. The final round features a giant roulette wheel that’s divided into red and black sections.

Assume, as it appears, that any contestant with a criminal background will not be allowed to participate in the show. Now think of yourself as an employer considering various applicants for an open position at your company. Would it be acceptable for you to operate in the same manner with a blanket policy that disqualifies any person with a criminal background from working for your organization?

In most cases the answer is no.

Blanket Policies Against Hiring People with Criminal Records Are Rarely Acceptable

Unlike reality TV shows, employers are held to fair hiring and equal employment standards that rarely make across-the-board ‘no criminal records’ policies acceptable. Let’s look at what the EEOC says about the use of criminal records in the hiring process.

The EEOC guidelines state that companies must have a business necessity to deny employment to an applicant based on a criminal record. Specifically, employers must consider:

  • the nature and gravity of the offense or offenses for which the applicant was convicted;
  • the time that has passed since the conviction and/or completion of the sentence;
  • and the nature of the job held or sought.

In 2008 the EEOC further clarified these guidelines by stating that while conviction records may be considered in the employment decision, where there is a disproportionate impact based on race or national origin, the employer must demonstrate that it considers the relationship of the crime to the position sought.

In other words, employers need to look at the nature of the crime (was it petty theft or armed robbery?) and the nature of the position (are you hiring an in-home care provider or a road builder?) and conduct a realistic risk assessment. An individual charged with petty theft is likely not going to be a huge threat if working in a supervised environment. On the other hand, someone charged with armed robbery is not the person you want to hire for in-home care. Those are obvious examples; nonetheless they illustrate the obvious need to avoid blanket criminal records policies.

So what do you think? Would “Black or White?” be justified in its decision to eliminate contestants with any type of criminal record?

About Michael Gaul

A security industry professional since 1988, Michael has extensive expertise in the fields of human capital risk management, physical security, and background screening process management. Michael leads Proforma’s sales, marketing, and strategic customer relations efforts.
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