Criminal background checks: Feds try to clear the air
The feds have been getting a lot of flack — including from nine state attorney generals — about the EEOC’s stance on the use of criminal background checks in the workplace. Now the EEOC has weighed in again — and you’ll want to hear what they have to say.
As you’ll recall, the Equal Employment Opportunity Commission released guidance on the use of criminal backgrounds checks in the hiring process in the spring of 2012.
Those guidelines stated that blanket policies that automatically reject job candidates with criminal records are illegal, with the rationale being that such policies have been found to have a disparate impact on minorities, according to the EEOC.
Since then, the guidance has led to proposed laws to ban criminal background checks and several lawsuits.
The latest developments: State attorney generals from nine states have sent a letter to the EEOC registering their indignation regarding the guidance — and the EEOC recently tried to clarify its stance to firms and employment lawyers.
They’re not happy
The chief legal officers from Alabama, Colorado, Georgia, Kansas, Montana, Nebraska, South Carolina, Utah and West Virginia recently sent a joint letter to the EEOC claiming that the lawsuits and application of the law regarding criminal background checks is “misguided and a quintessential example of gross federal overreach.”
That’s according to Christopher DeGroff, Reema Kapur and Gerald Maatman, Jr. over at Seyfarth Shaw.
Some more key quotes from the letter:
- “Forcing employers to undertake more individualized assessments will add significant costs. Employers will have to spend more time and money evaluating applicants that they would not have previously considered due to their criminal history and, in many cases, are unlikely to hire even after a more thorough vetting. In addition, more individualized assessments are liable to increase the number of discrimination suits by rejected applicants and, in turn, employers’ litigation expenses.”
- “[R]econsider your position, rescind the EEOC Enforcement Guidance…, and dismiss the [pending lawsuits].”
What the EEOC says
Coincidentally, several days before the letter was sent, several attorneys from the EEOC held a workshop to discuss and explain their stance on criminal background checks related to the recent guidance.
Most relevant to HR pros: info on how the EEOC assesses an employer’s criminal background check procedure and determines if it could have a disparate impact on minorities.
When investigating, the EEOC will rely on an employer’s electronic and hard copy applicant flow data, according to Lydell Bridgeford. The EEOC’s mathematicians then “crunch the statistics and show [companies] where there are gaps in the data” that could lead to a disparate impact.
Investigations also look at how criminal background checks are used on current employees. Did a company hire someone without conducting a criminal background check, and then require one before a promotion? What about firms that have acquired another business and force their newly acquired staff to undergo background checks? Depending on the decisions they make about who to keep and who to fire, said EEOC attorney Edward Loughlin, the firm could be discriminating against certain people.
Finally, the EEOC attorneys laid out what factors affect a statistical analysis into if a company’s criminal background check policy could create a disparate impact. Those include:
- internal statistics on applicant data
- external statistics on national and local workforce data
- the demographics of the state
- diversity of the workforce, and
- size of the employer.
3 criminal background check myths
Wilburn also addressed three misconceptions that employers and the media have about criminal background checks — and how the law is applied. Here are the three myths — and what’s actually true:
- Companies are prohibited from obtaining criminal background checks on applicants and employees. The EEOC does allow employers to use criminal history when making employment decisions. Where employers get into trouble: refusing to hire anyone with a criminal record.
- Employers are required to hire people with criminal records who aren’t qualified for open positions. Wilburn said that the feds’ guidance “does not require companies to hire anyone” but does advise firms on “how they can avoid Title VII liability if they use applicants’ or employees’ criminal records to make employment decisions.”
- The EEOC amended Title VII. In fact, Wilburn said, using Title VII analysis regarding the use of criminal background checks has been occurring at the EEOC since 1969.
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