How Background Screening Policies Eliminate Claims of Discrimination

In preparation of our webinar titled, “Save Big Dollars in Legal Fees & Settlement Costs by Implementing a Criminal Background Screening Policy,” we came across a very well written and informative article titled, “You Wanna Background Check Me? Well, Be Careful Where You Look.” The authors of the article, Cindy Hanson and Kali Wilson Beyah, comment on the increase in lawsuits brought to the EEOC (U.S. Equal Employment Opportunity Commission) in the past seven years. In 2007, there were 304 cases filed regarding employment selection procedures, compared to just 100 cases filed in 2003.

In essence, the issue stems from the fact that a high number of job applicants, the majority of which are minorities, are being disqualified from employment for either having a reportable criminal record or for having poor credit history. This information is legally reportable to employers when they request a pre-employment background check on applicants.

One reason employers may be facing additional EEOC complaints is that their background screening policy (if there is one in place) is too broad in its interpretation of “disqualifying information.” Some employers are disqualifying applicants solely due to a criminal conviction record. For example, a hypothetical company’s background screening policy could state, “Any applicant who is arrested for a crime will not be considered for employment with our organization.” This statement could be considered too vague by EEOC standards.

The article also discusses the idea that employers should perhaps consider other factors or parameters when a criminal conviction record is found before disqualifying an applicant such as if the applicant was actually convicted of the crime or if the charges were dismissed. An arrest record is much different than a conviction, which is when a judge and/or jury found the subject guilty of the crime or the subject plead guilty. One good example of why arrest records should not be reported if they do not result in a conviction is cases of mistaken identity. Occasionally, the police arrest someone and later determine they were not the actual suspect in question. Charges are not filed with the courts, but the arrest record will always exist.

Make sure that the applicant was actually convicted of the crime before making an educated employment decision. Another issue to consider is what type of crime did they commit? Was it violent or drug related? Was it a misdemeanor or felony? The majority of background screening policies state that any felony conviction reported is grounds for disqualification from employment consideration. By that rationale, would an applicant still be considered for employment if they were convicted of a misdemeanor? What if the original charge was a felony and the defendant plead down to a misdemeanor? What about a misdemeanor case that is amended to an infraction charge?

One of the most important issues for employers to consider is whether the crime is relevant to the position being sought by the applicant. For example, an employer looking to hire for a delivery driver position should be very wary of applicants with a Driving Under the Influence (DUI) conviction, but may not be as concerned with other less-relevant convictions.

Due to the current economic state and record high unemployment rate, employers everywhere are seeing their applicant pool increase exponentially. The job market has never been more competitive than it is now. As a corollary, employers need to protect themselves by implementing an effective but non-discriminatory background screening policy. Employers need to ensure that their employment background screening policies are as specific as possible, especially regarding criminal record and credit report searches.

When used as a part of a holistic approach to evaluating whether an individual meets the criteria required to fill an employment position, background checks can help an employer make better decisions. If not tailored to specific job positions and used as part of a plan designed to guard against disparate impact discrimination, background checks can lead an unwitting employer to violate federal anti-discrimination laws. In light of the EEOC’s commitment to rooting out discriminatory use of background checks, it is very important that employers give significant thought to their use of background checks and have constructed job-related justifications for the practices and criteria used.