EEOC Issues Guidelines Pertaining to Criminal Checks

Are you one of the many employers (some studies say up to 92%) who use criminal background checks as a part of the hiring process?  If so, you may wish to re-evaluate this process and proceed with great caution.  Many employers rely upon these checks to keep their clients, employees, resources and the general public safe.  However, recently adapted new guidelines, published by the Equal Employment Opportunity Commission (EEOC) in April 2012, make clear that companies should be particularly careful when referencing criminal backgrounds during the hiring process.

While the EEOC does not include ex-offenders as a protected class under Title VII, they do include race and ethnicity.  And there is concern that because segments of these protected classes (specifically black and Hispanic males) have higher incarceration rates, it may follow that these individuals would experience disparate treatment or disparate impact as a result of reliance upon criminal background checks in the hiring process.

The new guidelines, found at outline those practices which would be deemed “suspicious” under Title VII and the process of investigating claims of discrimination.

Some highlights of the guidelines include:

  • Discouragement of using arrest records to exclude potential candidates, as there is a very big difference between being arrested for a crime and actually being convicted of having committed one.
  • Discouragement of employers from asking about convictions on employment applications and instead, only inquiring into conviction for crimes that might be related to the position they would be hiring for (i.e. felony embezzlement.)
  • Clarification that State laws will not supersede the EEOC’s guidelines and that compliance with State laws is not an acceptable defense to an EEOC charge, unless those State laws comply the EEOC’s guidelines, as well.

Important to note is that, if done with a sound policy that was developed in accordance with the law, conviction information can be referenced during the hiring process.  However, if your company intends to proceed in this manner, we highly encourage you to first develop a company policy after consulting with an attorney who specializes in employment law.  If you would like to be directed to an attorney, please contact our office at (800) 596-TRUCK (8782).  At the Navigator Truck Insurance Agency we work hard to be accessible helpful and result oriented.

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