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.
