Best Practices for Employers in Light of EEOC Guidance on Use of Criminal Records
Employers’ use of background screening for job applicants should be reevaluated after the EEOC’s April 25, 2012, Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964.
The EEOC noted that an employer’s facially neutral policy can adversely affect an employee or applicant with a criminal history and have a disparate impact based on prohibited characteristics, such as race and national origin.
Per the EEOC’s Guidance, an employer cannot now simply reject an applicant because of his/her criminal record under an employer’s exclusionary policy. In the wake of the EEOC’s Guidance, employers using criminal background screening should now be prepared to prove a solid business reason (job necessity) for seeking the information.
The EEOC’s Guidance does not mean that employers should abandon [Criminal Records] background screening altogether. In fact, to do so could run afoul of an employer’s obligation to use reasonable care when hiring employees and lead to liability if third parties are harmed by an employee. Many courts have held an employer liable for an employee’s actions if the employer fails to conduct a reasonable investigation into the employee’s background prior to hiring.
In an effort to comply with these obligations without running afoul of Title VII with respect to criminal background policies, employers should at a minimum review their policies. In this regard, it is recommended that:
Employers develop a narrowly tailored written policy and procedures for screening applicants and employees for criminal conduct.
Employers identify in the policy the essential job requirements and the actual circumstances under which the jobs are performed.
The policy should determine the specific offenses that may demonstrate unfitness for performing such jobs and the duration of exclusions for criminal conduct.
Employers record the justification for the policy, procedures and exclusions, including a record of consultations and research considered in crafting the policy and procedures.
Employers train managers, hiring officials and decision makers on how to implement the policy and procedures consistent with Title VII.
Employers need to craft policies and procedures for conducting criminal background checks carefully, considering both the new EEOC Guidance and the need to provide a safe workplace with honest, productive employees.
Source: Reevaluating Employment Background Checks after the EEOC’s Guidance.Wilson Elser Moskowitz Edelman & Dicker LLP. By Sherril M. Colombo and Michelle Bergman.
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