Coming up on July 26, the Equal Employment Opportunity Commission (EEOC) will hold a hearing on the use of criminal records for employment screening purposes. The hearing, which will be held in Washington, D.C. is predicted to be a critical step in the Commission’s adoption of policies that could significantly impact how employers use criminal background checks in their employment decisions.
As an employer you may be wondering how the outcome of this hearing might impact your employment screening program. Let’s look at it from two sides.
The EEOC’s Aim: Eliminate Discrimination
Under the Civil Rights Act of 1964, the EEOC has long pursued policies to minimize or eliminate employment discrimination based on race, gender, or nationality. Since some groups, including African-Americans and Hispanics, have much higher incarceration rates, there is a naturally-resulting disparate impact on these groups when criminal records are used in the hiring process. As such, the EEOC has attempted to limit the disparate impact by adopting policies that mitigate it.
Current EEOC guidelines state that a company 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
- the nature of the job held or sought
In 2008 the EEOC further clarified its position 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.
One of the EEOC’s current goals is to develop strategies for addressing 21st century manifestations of discrimination. With this, it makes sense that the EEOC is looking to review and update its policies to reflect today’s economic and social situations.
The Employer’s Aim: Make Better Hiring Decisions
An employer’s aim is to create a safe and productive work environment by hiring people who are well-suited for the job. Fair hiring practices only facilitate this effort and we would argue that few employers would knowingly seek to eliminate individuals from the hiring pool unless it makes real sense to do so.
Unfortunately, with the use of criminal records there is also a bit of “damned if you do, damned if you don’t” in the mix. Damned if you do because disparate impact is high. Damned if you don’t because who wants to become the next headline?
For those employers who use employment background checks, criminal records play an important role in painting a picture of the person you’re about to hire. And having this background information is vitally important when you consider that, absent meaningful tort reform, companies can and will be held liable for the acts of their employees. And let’s face it: there are certain jobs in our society in which a person with a serious criminal background would present too great of a risk to fulfill.
When used as part of a comprehensive screening approach – meaning, when combined with other screening efforts like employment verifications, reference checks, driving records, etc. – criminal records can shed valuable light on the decision making process.
What Will the EEOC Hearing Bring?
It’s difficult to predict where the EEOC hearing and resulting guidelines will lead but there’s no doubt that employers’ use of criminal records will continue to be questioned and monitored. As such, we encourage our clients to get involved by contacting your state senator or congressmen to advocate for the rights of employers.