Criminal background checking has become a mainstream tool in hiring. Many employers consider it "best practice" and are willing to spend the extra money and time to do it before bringing an employee onboard. In some situations the law requires that a criminal background check be done. Why, then, has the EEOC taken aim at this commonsense practice in recent lawsuits against BMW and Dollar General? (See: www.eeoc.gov/eeoc/newsroom/release/6-11-13.cfm.)
- First, the EEOC has not said that an employer cannot or should not do criminal background checks. The rub is in how the employer uses the information it receives.
- If an employer does checks and applies the results consistently to everyone applying for a particular position regardless of race, sex, age or other protected class, disparate treatment (intentional) discrimination is not the issue. The problem is "unintentional" adverse impact, particularly on people of color.
- Relying on arrests has long been considered unreliable and problematic from a racial discrimination standpoint. The new focus is on how the EEOC believes an employer should use information on criminal convictions.
- In recent EEOC guidance yet to be adopted by the courts, the Agency has said that because relying on convictions also adversely impacts people of color, employers should be required to prove that use of this information is "job related" and "consistent with business necessity." In short-hand terms, an employer using this information should be prepared to prove that a candidate's criminal background is predictive of successful performance in the particular job for which he or she is being considered.
- At a minimum, the EEOC's position means that an employer who uses conviction information should make individualized decisions after considering the circumstances resulting in the conviction, the nature of the criminal offense, the age of the conviction, and the essential functions of the job.
- The controversy stems from the fact that, unlike other "neutral" factors such as pre-employment testing, criminal convictions are, at their core, a fault-based criterion. Some argue that insufficient evidence exists to show that criminal convictions are reliable measures of the actual commission of crimes, or even so, that criminal activity is not always a reliable indicator of character traits that impact job performance.
- As with any neutral criterion that is used to make personnel decisions, watch for disparate impact and question the necessity and predictive value of any practice that causes that impact.
- The EEOC's message is: do not default to using criminal conviction information in an overly broad way as an early screening tool; instead, limit the information requested to only that which is relevant, apply the information carefully to individual situations, and make informed judgments.
TIP: Include characteristics in job descriptions (such as adherence to work rules, financial responsibility, calm demeanor, trustworthiness, ability to work with minimal supervision, compassion for disabled, youth etc. ) the absence of which could be revealed by criminal convictions.