The feds are keeping close watch on companies’ hiring procedures. Here’s how to stay off their hit list. 
At the end of last year, the EEOC announced it would focus on two areas of the hiring process: the tests used to evaluate candidates and policies regarding candidates with criminal records.
Physical and mental tests
Pre-employment tests can be discriminatory if they’re administered to one group and not another, or scores are adjusted based on someone’s race, sex, etc. But the EEOC’s also going after tests that have a “disparate impact” on some groups – that is, they tend to unintentionally exclude members of a protected class.
Companies can stay off the hook for discrimination suits as long as:
- The procedure tests skills necessary for the position or predictive of job performance, and
- There isn’t a less discriminatory alternative available.
For example, a strength test to see if candidates can lift a certain weight might favor men over women. But that test is legal, as long as that’s what the job requires.
With tests for cognitive skills, where the relationship with the job might be less direct, the EEOC recommends:
- Keeping track of who the test screens out, and considering alternatives if there’s a disparate impact, and
- Updating tests as job descriptions and duties change.
Criminal records
The agency’s also cracking down on the use of criminal background checks. Why? Because eliminating candidates with prior convictions could have a disparate impact on minorities.
It’s still legal in a lot of situations to consider conviction records. As with pre-employment tests, the keys are job-relation and business necessity.
In one recent case, a recent hire was let go when his employer found out he’d been convicted for murder 40 years earlier. He sued, claiming the policy against hiring people with violent convictions was unfair to minorities.
The company won. The policy was restricted to applicants convicted of violent crimes, which the court agreed was appropriate for keeping customers safe. (The employee would’ve spent a lot of time with customers, unsupervised).
According to the EEOC, a policy against hiring someone with any type of conviction would likely break the law. Instead, the agency recommends evaluating each situation individually. Employers should consider:
- the nature and severity of the conviction
- the time that has passed since the conviction, and
- the nature of the job the person is seeking.
Also, companies should avoid using records of arrests that didn’t lead to convictions. And check your state’s laws – some get more specific than the feds’ on what you can and can’t use to make decisions.
Cite: El v. Southeastern Pennsylvania Transp. Authority
