Background Checks for Hiring are Critical – but Can Land YOU in Hot Water

As a staffing provider, one of the services that we routinely provide for our clients is conducting criminal and even credit background checks on candidates.

By Royale Class

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Because we do this often and for so many, we have to have a strong understanding of the kinds of checks we can run, and how each type can be used in making hiring decisions. For now, we’re going to limit the discussion to the most common type of background check: the criminal background check.

Federal law, specifically Title VII of the Civil Rights Act of 1964, prohibits covered entities – including staffing providers – from discriminating against applicants and employees based on race, color, ethnicity, disability, age, sex, religion, national origin and any other protected class. The Equal Employment Opportunity Commission (EEOC) enforces these statues.

The EEOC has resources to help employers understand the extent to which a candidate’s criminal history can be used to make a hiring or termination decision. A recent guidance addresses two types of discrimination that can occur in connection with a covered entity’s use of criminal information: disparate treatment and disparate impact.

Disparate treatment

An example of disparate treatment discrimination is if an applicant or employee in a protected class is treated differently from others, based only on their criminal histories. The real question in this case is whether the company could somehow be found to have intentionally discriminated against one individual based on their criminal history.

Disparate impact

Disparate impact discrimination can occur in situations where, while all applicants and employees are treated the same way based on their criminal histories, members of a protected class were disproportionally affected by the company’s policies. Even if a company’s policies are job-related and consistent with business needs, discrimination can still be found where the company could have used a less discriminatory employment practice, policy or procedure.

Arrest vs. Conviction

The EEOC guidance also works through the differences between arrest records and conviction records. The guidance urges companies not to use arrest records as the basis for a decision, as, among other things, an arrest does not mean that criminal conduct actually occurred. At the same time, the EEOC Enforcement Guidance recognizes that conviction records are more reliable than arrest records; caution is still warranted because criminal conviction records can be incorrect or out of date, and the type of conviction does matter in employment decisions.

Finally, the Enforcement Guidance advises that companies that use criminal records in hiring decisions should have a practice, policy or procedure in place that will “effectively link specific risks inherent in the duties of a particular position.”

There may be no 100% foolproof way to ensure that your organization isn’t brought up on discrimination charges, but if you follow the recommendations of each EEOC Guidance document, chances are reduced that you’ll have anything to worry about, at least from a federal perspective. Each state may have its own laws on how the background check can be used.

This is one area that a good staffing partner can offer insight, guidance and even a bit of legal protection when hiring. Because we’re in the business of conducting and evaluating many background checks every year, we have a deep understanding of employment law and what can – and can’t – be used as the basis for a hiring decision. If you have questions about the use of background checks for your organization and want to ensure that you’re staying on the right side of the law, feel free to connect with me. I’ll get you a straight and candid answer.

Until next time, I've gotta 'lotta opinion about everything,

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PS: If you haven't already, take a look at "The Anti-Staffing Agency Manifesto" and see how we're waging the talent war on a whole new level. We'd love to hear from you and to know what you think.

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