Recruiting: EEOC warns about background checks
January 6, 2010 by Jim GiulianoPosted in: Employment law, Hiring, In this week's e-newsletter, Latest News & Views, References
When the Equal Employment Opportunity Commission started noticing an increase in discrimination suits based on background checks, the agency decided to warn employers about practices that could get them in trouble.
The EEOC program designed to combat discriminatory practices tied to background checks is called E-RACE (Eradicating Racism And Colorism from Employment). It started when the agency noted, in the last few years, a steep climb in complaints from applicants who said they were unfairly excluded from competing for a job because of information that showed up on a background check.
What sort of information? On the face of it, nothing extraordinary — a criminal record or a poor credit rating. The problem came when applicants were able to show that the criteria used had a negative impact on hiring opportunities for black and Hispanic males, who statistically have higher arrest rates and lower credit scores than white males.
Here are two background-check practices that have caused the biggest headaches — with the EEOC and in court — for employers:
- Blanket policies against hiring anyone with a criminal record or poor credit score. The sticking point for such policies is that, without knowing it, an employer could routinely give preference to whites. What to do: Check to see if your practices exclude most blacks and Hispanics, whole opening the door to white applicants. If you see a pattern, the EEOC may see one, too.
- Failing to show the correlation between background checks and the job itself. The EEOC and the courts generally recognize that some background material may have some bearing on the applicant’s suitability for the job. In the most obvious instance, for example, you wouldn’t be expected to hire a convicted embezzler to handle cash. There are other situations that apply — contact with customers, driving company vehicles, dealing with minors, etc. You’re on safer ground if you can show those correlations between background checks and suitability.
Tags: background checks, e-race, eeoc
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January 6th, 2010 at 11:14 pm
Excellent article that ever employer should be aware of. In fact, the EEOC has recently filed a lawsuit against a national employer alleging that credit reports and criminal records were used in a discriminatory fashion. http://www.esrcheck.com/wordpress/1057/new-eeoc-lawsuit-for-discrimination-based-on-credit-report-and-criminal-records The one thing that small and medium businesses do not want to do is to use screening software that makes automated decision. That is a big risk taken for no good reason.
January 8th, 2010 at 10:56 am
Many ermployers, seeking to establish consistency and non-discriminatory practices in their employment practices often develop blanket policies without taking into acount the disparate impact such policies may have. The stakes in the talent-acquisition process are high. When the background-checking decisions are made at the highest levels of the organization, employers significantly reduce their risks. HR executives should ask themselves if they know exactly what background checks their company is conducting.
January 19th, 2010 at 7:41 am
Employers should continue to examine their hiring practices to ensure that all proper local, state and federal laws are met. In addition, employers should maintain consistent hiring policies and be cautious when making an adverse hiring decision to ensure that all guidelines are met. Often times employers find themselves in compromising situations by failing to properly follow guidelines set forth or to feel that they can make an arbitrary decision to not hire, not realizing that it could be discriminatory.
January 19th, 2010 at 8:53 am
I’m wll aware of how sometimes seeminly ‘harmless’ practices can unintentially create a disparate impact on certain classes, yet I still go back and forth on this concept. While I certainly dont believe they should be USED to discriminate, if a compnay does a check on every applicant and has a standing policy that they will not hire anyone with a felony conviction (for example) – including a white man with a felony conviction – how is it discrimination on the employer’s part that “statistically” more minorities have felony convictions? Is that just where the buck stops? why isn’t it the responsibility of the police departments to avoid racial profiling, or funding recources to ensure equality in education because people with a higher education “statistically” are less likely to have a criminal records (I don’t know this – just an example). You get the picture. I 100% agree that all classes should have protections (to ensure equality), it just seems that it becomes impossible for employers to have any selection criteria that doesn’t ’suggest’ some form of discrimination these days. Before you all attack me – that being said, I personally only believe credit and criminal background checks should be used if it ABSOLUTELY is necessary because of the type of job.
January 19th, 2010 at 12:00 pm
My employee’s are given the keys and alarm codes to my customer’s facilities with after hours access. I have a responsibility to protect my customer’s from theft and violence, so new hires with a history of theft and violence are not retained. My employee’s must also be bondable and insurable to drive my vehicles. This criteria applies to all applicants eligible to work in the United States. Is this discriminatory?
This reminds me of another article I read that warned that advertising for employees only in the newspaper can be discriminatory because statistically, more whites read the paper. Employee referral hiring can also be considered discriminatory because it causes you to only hire people of the same ethnicity as your current employees.
Where does this end? It drives me crazy how anything you do can be twisted to be called discrimination.
Maybe I should just open the front door and hire a sky-writer to announce that I will hire anyone who can make it in the door. You don’t have to do anything other than show me you are eligible to work in the U.S. You have no job duties, no set schedule, and no responsibility. You will receive superior pay, excellent benefits, and you will never lose your job no matter what you do or don’t do.
January 19th, 2010 at 1:52 pm
I agree with Nomi and CB, We have gone so far the other way that there are no repercusions for anything anymore. Let’s look at another senerio. A company hires an employee that has a record that shows violence, but hires them anyway, becouse the EEOC says it is decriminatory to not hire that person. That individule comes to work under stress and kills some of his/her co-workers. Where does that responsibility fall. (The company) And who do you think has to face the families. (HR) I feel one of my most important jobs is to protect my employees and give them a safe environment to work in. Maybe if you have a criminal record of violence and theft and can no longer find a job, then those who may follow in those footsteps will think twice. Until we stand up as a country and say enough is enough, things will only continue to get worst. How many of you have made a comment in the last week, that you don’t like the direction this country is heading in?
January 20th, 2010 at 11:40 am
The EEOC is simply making companies do their jobs when making an employment selection without unlawfully discriminating.
I know many HR executives who put the selection process in “automatic” with various “go/ no go” screens. Every executive needs to consider the criminal records (as well as all the information) and put it into perspective and THEN relate it to the job. For instance, a criminal offense 7 years ago followed by positive employment and education (with references) seems to put a candidate into perspective compared to a candidate with no criminal history but no sustained positive employment/ education over the last seven years.
Certainly the offense matters, as well, but must be taken into consideration with how they have performed after the offense. For instance, if a person was convicted of aggravated assault seven years ago and there is no evidence of problems (criminally, civilly, or employment wise) since, then perhaps they have obtained the help and treatment needed and are better off than the general population in coping with stressful situations. If the offense was “writing bad checks” seven years ago, with no other problems since then, then I think you could probably trust them at your cash register more than the person who has no conviction, but has a spotty employment history and references that cannot speak to the person’s integrity or character.
January 20th, 2010 at 12:02 pm
I don’t think it’s discrimination when you hold every person to the same standard regardless of their race, religion, gender, etc. I have a policy, this policy applies to all employees. The EEOC says because blacks and hispanics statistically have poor records, you have to treat them differently than white people. You have to make more allowances for them or hold them to a lower standard. What is equal about that? It sounds like equal but different which I do NOT believe in.
Mike, we have set parameters on what will be acceptable on your background and what will not. We do not have a blanket policy that throws out any applicant with a parking ticket. We have set cut-offs for various types of offenses, based on the severity of the charge and the age of the offense.
January 21st, 2010 at 8:52 pm
I believe the question about a criminal record should NOT be ask on the employment application, but after a job offer has been presented to the individual. Not asking about the criminal record at the initial stage of the employment process, is allowing people with criminal records a viable chance for employment. These people should be offered the same opportunity to be lawfully employed as anybody else, so that they can take care of themselves and their family. They need to reintegrate into society, after they paid their debt for the crime they committed, otherwise why let them out to do nothing or possibly commit more crimes. It’s too often that you hear an ignorant comment, “Well, they shouldn’t have committed the crime in the first place”. My response to that would be; what does the two have to do with each other? Is society trying to impose their on justice after the courts already imposed their penalty on the individual? There are already laws in place to protect society from people that are considered a high risk to the most vulnerable. For instance, while it may be appropriate to prohibit anyone convicted of a child sex offense from working in day care, it would be unreasonable to say that anyone who has ever been convicted of any offense should be prohibited from working with children. The EEOC has offered guidance for employers in hiring people with criminal convictions, which is not to exclude people with a conviction, unless there is a “business justification”. The employer must show that it considered these three factors to determine whether its decision was justified by business necessity: The nature and gravity of the offense or offenses; the time that has passed since the conviction and/or completion of the sentence; and the nature of the job held or sought. The U.S. Equal Employment Opportunity Commission (EEOC) has concluded that because African American and Latino workers are arrested and convicted more often than whites, hiring policies that exclude workers with a criminal record may discriminate in violation of Title VII of the Civil Rights Act of 1964.
January 25th, 2010 at 9:45 pm
[...] HR Morning carried an article titled: “EEOC warns about background checks.” It’s about the E-RACE program. Here’s a core paragraph. “The EEOC [...]
February 17th, 2010 at 3:32 pm
Wow. I’m walking proof that background checks can be considered discrimination. 12 years ago I got in trouble with the law for drugs that my now ex husband had drugs on him. So I got a felony. Since then I got my GED my voting rights and my civil rights restored so I can run for “public office”. But I had never been in trouble with the law and never have since then. So I go to apply for a job and they deny me because I have a felony for someones elses problem that I was not aware of so how fair is that???????????
February 17th, 2010 at 6:19 pm
aubra, If something comes back on a background check and an employee tells me it is not true, they are given the opportunity to have the record corrected. I take my responsibilities to my customers seriously but I am not an ogre.
The info that comes back on a background is only as good as it can be with humans involved. Mistakes will be made. Sometimes felonies don’t show up when they should. We can only do our best with what is available to us.
April 22nd, 2010 at 5:08 pm
I wanted to respond to a statement of “Maybe if you have a criminal record of violence and theft and can no longer find a job, then those who may follow in those footsteps will think twice. Until we stand up as a country and say enough is enough, things will only continue to get worst. How many of you have made a comment in the last week, that you don’t like the direction this country is heading in?”
First off, 70% of all crimes are non-violent, theft and drug related. But employers refuse to hire them. So if employers refuse to hire, where should these individuals who are living in your communities get their money to eat sleep and live? Thankfully your tax dollars are provding them this social need. So please continue to deny felons jobs and make more revenue through your company so Uncle Sam can pay the felons who aren’t allowed to work. Wouldn’t you rather have the felon working and paying their own share of taxes back to the system that invested into their rehabilitation? As a business person, where is your return for your investment of your tax dollars?
July 3rd, 2010 at 9:24 am
I would agree that the conviction question should not be asked on the application. These days most applications are done on line. This simply allows the H/R Department to delete without a trace, those who answer the question honestly. As in the state of Hawaii, the question can asked at the interview, thus giving the applicant the opportunity to explain. I do not believe that there is any more workplace crime in Hawaii than the other 49 states.
I do not believe that the EEOC is going to much more than what they have done to date, not much. If the issue is truly about giving people a second chance in life rather than politics, they will put controls in place to ensure that companies are in compliance. Such as amount of people with convictions interviewed Vs number hired. Documentation as to the why canidate was not hired. etc. I do not believe that the EEOC will go this far, after all they have been talking about this for years. Until it is displayed on their required workplace posters will it be in effect. Even if they did, companies would just simly outsource their application process to a third party, who would be immune to such regulations. Case in point, in California, companies can only go back 7 years in a background check, if they do it themselves. If the company outsources their background checks to a third party, this rule does not apply. Why does this loopole exist?
We as a society jail more people per capita than any oother country. We have over 50% of the worlds attorneys, and the worlds largest goverment ran, criminal justice system. Food for thought
August 16th, 2010 at 12:38 pm
Let me get this straight. Because blacks and Hispanics “who statistically have higher arrest rates and lower credit scores than white males” per the EEOC statement, might not pass most companies background check requirements, that makes it racist and dicriminatory not to hire them. Amazing; now we’re giving preferentail treatment to convicted felons (as long as they’re also minorities). Will wonder’s never cease. If you’re having a hard time getting a job, maybe you should consider going out and committing a felony to strenghten you resume.
August 16th, 2010 at 8:33 pm
Statements are to be understood and not taken out of context. There is no statement from the EEOC that employers must hire a person with a criminal record or negative credit history. The EEOC has stated that facially neutral employment screening on the basis of arrest and conviction records may “significantly create a disadvantage for applicants and employees on the basis of race. These racial disparities are largely rooted in law enforcement practices and criminal justice system that disproportionately target minorities. The EEOC has also heard from two of the leading researchers looking at the intersection of criminal records and employment, Devah Pager and Shawn Bushway. Their research has been groundbreaking in showing both the severity of the “mark of a criminal record” for applicants seeking employment, and the serious limitations of using a prior conviction as a predictor of future criminal activity. Their research help inform policy decisions in this area with respect to EEOC guidance for employers. I have worked with professionals that have shown and acted out violent tendencies and had no criminal record. Not to mention the hundreds of disgruntled employees and ex-employees, that had NO criminal conviction history, yet kill their fellow co-workers. So, why are employers using these criteria’s as a basis to employment? Maybe, it stems from the multi-million dollar employment screening companies driving fear into organizations to make a huge profit for their services at the expense of the poor.
August 18th, 2010 at 5:39 am
I agree with “Don Says”. I have a simple philosophy. I dont want to work with a convicted felon, albeit a convicted drug dealer, murderer, etc. I dont care if they are a minority or not. It doesnt make a difference to me what they did. What does matter is subjecting our employees to the increased “possibility” of a problem. I understand where the EEOC is going with this along with the courts. I dont think its fair to give more “understanding” to a felon rather than to a law abiding citizen white or black or hispanic etc. After all, the felon didnt care about anybody else when they committed the felony did they?
August 25th, 2010 at 7:56 am
@ HR Don-
I respect your position but truly disagree. What threat is more greater? Having a ex-offender who has no job and no place to live roaming the streets, in your back yard or a ex-offender working as any other working class citizen, paying their taxes and obeying the laws?
Please provide your rationale and research as why you think ex-offenders in a work place is so threatening? Please provide me some statistics showing that workplace violence is mostly committed by ex-ofenders. I promise you will find a larger magority of work place violence is not committed by ex-offenders because employers do not want to hire them. I further promise you will find your position has been formulated based on stereotyping with no foundational or credible basis. I will also bet that if you gave consideration you would agree that a ex-offender who can not get a job is at a much higher risk of re-offending than one who does have a good job, house and family. Oh thats right, ex-offenders do have family and children, do we wish to sucumb their family and children to poor lifestyles that forces them to live off the tax payers through the way of foodstamps, housing, free medical ? i think not.
I’d rather see a fair process, that is fair considereation based on their skills and experience.
Let’s look at the big picture rather than the spec of a criminal record. Yes these individuals committed their crime and there is no taking it back, no do we want to see them stop committing crimes or continuing because we wish to strip them of everything. Last comment, if a ex-offender was truly that bad why are we letting them out of jail/prison? Obviously their crimes aren’t that serious.
August 25th, 2010 at 10:45 am
@Joe
You sounded very reasonable until the last comment. You have got to be kidding when you ask why do we let them out. We let them out because the system is broken. We let people out due to over-crowding. How many times do you hear about violent criminals being let out early who then re-offend? I hear about these cases all the time.
August 25th, 2010 at 11:40 am
@ nomi
I was really meaning that question to be rhetorical… I am not aware of violent offenders being released early from there sentences, of course I don’t live in California either. I do agree the system is broken. However, those individuals who do complete their sentence are released, if they were a continued threat to society then why release them? hence why a number of convictions require life sentences, but i would also argue its not alway about them being a threat but the penalty of their crime determines their sentence – i do agree with this. I only hear of non-violent offenders being released early (or if your name is Linsey Lohan) and in some states they equate to 60 to 80 of entire prison population and also represent the group that re-offends the most because the most serious offenders are not free roaming society looking for jobs/housing.
We as a society tend to catagorize everyone with one broad brush stroke and we should look at history to remind ourselves that style of thinking isn’t right….