Balancing Background Checks & EEOC Compliance

Typically, finding the right person for the job is easier said than done, and for small- and medium-sized businesses, this is especially true. Once you wade through the resumes and interview promising candidates, a standard background check may uncover information that makes the candidate much less attractive. But new guidelines issued by the Equal Employment Opportunity Council (EEOC) may allow you to overlook some of the negative information acquired through a background check. So how do you balance your business’s need to employ the right people with maintaining EEOC compliance?

Most conscientious employers do realize the value of a background check prior to making a final hiring decision. Once the decision has been made to investigate the past behavior of a potential new employee, the next step is to determine what components should be included. Likely, this will be tailored to the position for which the applicant is being considered. Most background checks will include some level of searching for prior criminal convictions; some may want to verify past employment/experience or a degree. If driving is part of the job description, a driver’s license verification and driving history may make sense. If the job comes with some level of financial responsibility, an employer may want to do a credit check. For some, a pre-employment drug test may also be advisable.

The decision concerning what information is sought is relatively easy. Simply think about the risks inherent to the position you’re filling. Remember to include all aspects of the job when you’re considering those risks—even those occasional tasks such as a trip to the office supply store to pick up an item that can’t wait for next-day delivery.

Now, let’s say you’ve completed the background check and discover your highly qualified job candidate has a criminal record, a poor driving record or has exaggerated his/her responsibilities in descriptions of previous jobs. The decision to hire or not to hire isn’t always easy at this point. And given the recently updated EEOC guidelines, it shouldn’t be easy. If your policy states, in essence, convicted felons need not apply, you’re asking for trouble. There are exceptions, of course, but in general, the EEOC takes a very dim view of employers who have policies in place that automatically exclude anyone with a criminal conviction.

For instance, if the federal government says you cannot hire someone to work in your bank because the person has a record of conviction for embezzlement, that’s pretty cut and dry. Interestingly though, the new EEOC guidance doesn’t make the same exception for state and local government regulations as it does for the federal government. So a security guard company licensed by a state agency that says you cannot hire a convicted felon would not trigger an exception according to the EEOC. (One assumes that this may get resolved in the courts someday unless the EEOC makes a change and includes all government regulations at the federal, state and local levels.)

Barring a federal regulation that prohibits you from hiring an individual with a specific type of criminal record, avoiding a potential claim of discrimination by the EEOC will require one of two things:

1. Validate the criminal conduct exclusion for the position in question in light of the Uniform Guidelines on Employee Selection Procedures (if data exists about criminal conduct as related to subsequent work performance or behaviors). A validation study would show that the behavior you’re identifying in your background check is a good predictor of future job performance for your type of position.
2. Develop a screening policy that considers, at a minimum, the nature of the crime, the time elapsed and the nature of the job. Other things to consider may include demonstrated attempts at rehabilitation (anger management classes, drug rehab completion, etc.) and age at the time of offense. Next, determine specific offenses that would demonstrate being unfit for a specific job and determine for how long a conviction for that offense should remain an exclusion.

The policy should then provide for an individual assessment to determine if the policy as applied is job-related and consistent with business necessity. Although an individualized assessment is not required by Title VII of the Civil Rights Act of 1964, the EEOC has said that not including an individualized assessment is more likely to be seen as a violation. This assessment should include an interview with the candidate in order to give him or her the chance to provide additional facts or circumstances regarding the criminal offense or conduct and any other circumstances that may have bearing on the employer’s decision, such as:

• The number of offenses for which the individual was convicted;
• Age at the time of conviction;
• Evidence that the individual has performed the same type of work post-conviction with no known adverse effects;
• Length and consistency of employment history before and after the offense(s);
• Rehabilitation efforts, including education/training; and
• Any information regarding the applicant’s fitness to hold the position in question, including employment and character references.

The key here is to show you provided an opportunity for the applicant to offer additional information. Then, use this information to make a final determination regarding whether or not the conviction is job-related and should prohibit this applicant from being hired due to business necessity. Business necessity may include such things as safety of co-workers, customers or the general public; a concern for the inability to follow rules/procedures; etc. Be sure to apply your decision-making reasoning consistently and document the process with each case.

The new guidelines approved in April 2012 are just that— guidelines. They are meant to provide insight as to how the EEOC will view an employer’s use of arrest and conviction data in the employment screening process. In light of this, it may be a good time to review all employment screening practices, retrain staff involved in the hiring process and consult with your labor law attorney to be sure you’re doing all you can to not only avoid the scrutiny of the EEOC, but also plaintiff attorneys looking to pursue civil cases.