The EEOC sued both BMW and Dollar General Stores on the same day in June. Their offense? Their facially neutral and consistently applied policy of not considering those with criminal convictions for employment. The EEOC has decided that since Blacks and Hispanics have consistently higher conviction rates for crimes (the statistics involved are not in dispute) such policies disproportionately harm them.
Does this mean criminal background checks are defacto illegal now? No, but practice changes and discretion are required to comply with the EEOC’s enforcement posture.
Tillman Coffey of Fisher and Phillips has prepared an excellent primer for employers on the proper use of criminal and credit background checks. Here are some of the questions he poses:
Question 1. Is all available information equally relevant?
Criminal, Driving, Credit, Education are among the most typical records searched. What information do you truly need and, most importantly, how do you intend to use it?
Question No. 2: Do You Have Valid Reasons To Conduct Background Checks?
HR pros should evaluate positions in the company and determine those which warrant background checks and of what type. Does the position have fiduciary responsibility? Handle sensitive personal information (credit card transactions). These are merely two examples of roles that would warrant both criminal and credit background checks.
Question No. 3: Are You Making Tailored Assessments Of Unsuitability?
Since the EEOC has established its distaste for rigid and consistently enforced policy, employers are expected to take into account the following variables when determining whether or not dispositive information warrants rejection of an employment offer or termination of employment if the information came to light shortly after date of hire:
- the nature of the job sought;
- the number, nature and gravity of offense(s), as well as surrounding facts such as age at the time of conviction;
- the passage of time since the offense and/or completion of the sentence, and any evidence of rehabilitation efforts, employment history, or compelling references; and
- other evidence of suitability, such as successful prior employment in a similar role.
This is not the end of the story. Consistent with its ERACE (Eradicating Racism and Colorism from Employment) initiative, neutral pre-employment policies and practices of employers, perfectly legal up to now, are squarely in the EEOC ‘s gun sights. HR Pros can expect to see more scrutiny of their hiring practices by the EEOC.