The Equal Employment Opportunity Commission recently released a set of guidelines regarding criminal history background checks performed by employers on job applicants. The essential message is that it is no longer acceptable to perform blanket background checks on all applicants for all jobs: the potential criminal conduct being scrutinized must relate to the prospective job in some way. Furthermore, the eventual hiring decision, if based on the results of a criminal background check (the applicant is not hired), must be connected to specific policies and the specific responsibilities of the job. Violations of these guidelines are illegal according to Title VII, the federal law regarding hiring discrimination, and could result in civil or even criminal liability for the employer.
Let’s say, for example, that a construction company is interviewing candidates for a position driving a backhoe on-site. One candidate seems otherwise qualified but has a sexual assault conviction on his record dating from five years ago. Denying him consideration for the job would be illegal under EEOC guidelines, because nothing about that conviction relates to that applicant’s ability or inability to drive a backhoe or for the job in general. It should be noted that this is a relatively new policy; until quite recently, it was acceptable—and employers believed and erroneously, continue to believe—that an applicant’s having any criminal record was sufficient grounds for denying any application for any job. That is no longer the case.
Of course, as a practical matter, this policy/law is almost impossible to enforce. The job applicant would have to a) be interested in pursuing the matter in the first place, b) as a practical matter, remain unemployed, c) be able to conclusively demonstrate that his denial of employment was specifically due to his criminal record. In the real world, these three things almost never occur, mostly because any employer can come up with a reason (real or fictional) why the candidate actually hired was better qualified than the aggrieved rejected applicant. This is not enough reason to ignore the policy guidelines, however. A successful employment discrimination lawsuit may be unlikely, but it can be a back-breaker for a small business.
Look for reports generated by reputable check companies so that they are thoroughly detailed and contain specific information about the person examined. With a complete picture available, you can avoid taking information out of context or making decisions based on (unbeknownst to you) missing or incomplete information. This is vital for compliance with EEOC guidelines and Title VII.
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