You certainly don’t want to bring trouble into your organization by hiring someone who is going to steal from you or jeopardize the safety of your workplace, so the need for criminal background checks is understandable. But you still must ensure that you don’t discriminate against perfectly suitable candidates because of their past. Balancing these two demands can be challenging.
At the 57th annual ASIS International Seminar & Exhibits, I attended a session titled “Background Checks Under Fire: A Legal Update”, which was lead by Angela Bosworth, J.D. and EVP of OPENOnline, an agency specializing in background checks and pre-employment screening. To kick off the session, Bosworth shared some stats with us about the current hiring climate in the US:
- 15 million are unemployed.
- 2.8 million available jobs, 4-10 people applying for each job.
- Additional pressure on recruiters/employers to screen hundreds of applicants for a single opening.
Bosworth explained that the current hiring climate has resulted in employers narrowing their search methods, which could lead to an unbalanced field that lacks diversity and homogenous pools of candidates.
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EEOC Guidance on the Use of Criminal Records
According to the EEOC:
“The Commission continues to hold that, where there is evidence of adverse impact, an absolute bar to employment based on the mere fact that an individual has a conviction record is unlawful under Title VII. The Commission’s position on this issue is supported by the weight of judicial authority.”
On preventing discriminatory hiring practices, the EEOC states:
To prevent discriminatory hiring practices when using criminal records, employers must take into account:
- The nature and gravity of the offense or offenses;
- The time that has passed since the conviction and/or completion of the sentence; and
- The nature of the job held or sought.
Stuck in the Middle
Bosworth noted that employers can be caught in the middle when it comes to background checks. She explained that employers:
- Need to maintain a safe workplace
- Face the threat of negligent hiring, negligent retention laws
- Serve the public interest in conducting background checks
At the same time, employers:
- Must avoid discrimination
- Must maintain an appropriate hiring pool
- Face restrictions on how to conduct appropriate screening
Ban the Box
Bosworth noted that in some states in the US, there’s been a “ban the box” movement, which limits an employer’s ability to ask about criminal history on an application. In most cases, laws already limit what an employer can ask about criminal history at the applicant stage. She mentioned that there have been two major arguments in support of this movement:
- Proponents for ex-offenders claim that qualified workers are being eliminated because of past criminal history
- Disparate impact, or unintended discrimination against large pools of applicants protected by Title VII as a “protected class”
However, employers want the right to screen who they want. As more laws are adopted, it makes compliance harder. Businesses need to look at different laws if they operate in multiple jurisdictions, and must also review hiring policies for contract workers and temporary employees.
The Moral of the Story
Background checks will continue to be an important part of the hiring process. With the recent waive of lawsuits and new regulations and laws, employers need to consider whether their hiring criteria relates to the job. If a criminal background check is conducted but doesn’t relate to the nature of the job, the applicant might make a legal claim for discrimination or argue that the information obtained cannot be used when making hiring decisions.
Bosworth recommends taking the following steps to prove that a criminal background check is related to the job the candidate is applying for:
- Bring together stakeholders in your organization: HR, security, IT, legal
- Audit policies and procedures
- Consider incorporating EEOC Guidelines in policies
- Avoid “blanket” policies such as an outright ban on a past criminal record
- Match hiring criteria with job descriptions to prove business necessity and job relatedness (and put these in writing!)
- Review hiring policies for contract workers/temporary employees
- If you are using an outside staffing resource, audit their practices and review their advertisements
You can connect with Angela Bosworth on LinkedIn: https://www.linkedin.com/in/angelabosworth