While much of the legislation surrounding hiring is widely known and properly applied, rules applying to background checks are often overlooked simply because employers are unaware of them. After all why would you request a background check from a candidate and not use the information obtained when making hiring decisions? Although it’s legal to obtain background checks and utilize the information for both applicants and employees, it’s not legal to use the criminal history in a discriminatory fashion. So what exactly does “in a discriminatory fashion” mean and what are the right steps for using background checks when deciding who to hire?
There are two ways an employer can use background checks in a manner that is considered discriminatory. First, the use of background checks can be considered discriminatory if the criminal records disproportionately exclude people of a particular race or national origin, this practice is known as disparate impact discrimination. What’s most important to remember about this rule is that the motivation of the employer doesn’t have to be to discriminate against anyone. In regards to this portion of the rule, the actions of the employer only need to have aneffect of excluding a protected class. It’s particularly important to understand that candidates and employees don’t need to prove an employer’s intent to discriminate, only that the utilization of background checks did effectively have the consequence of discrimination against a protected class.
The second example of discrimination is a little more obvious: It’s always illegal to treat applicants or employees with similar criminal records differently because of their race, national origin or another protected characteristic. That means you simply cannot treat applicants with the same criminal background differently because their religion or race is more or less appealing to you in some way than another candidate’s.
In order to limit liability during the hiring process make sure that any exclusions that you make based on criminal background checks are “job related and consistent with business necessity” under Title VII. This requirement is an easy place for employers to make mistakes, particularly with hiring practices and policies that exclude every candidate with any criminal record regardless of whether or not it’s necessary for the employee or candidate’s ability to safely and efficiently do the job. According to the Supreme Court the “absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as ‘built in headwinds’ for minority groups and are unrelated to measuring job capacity.”
As an employer, it’s important to ask yourself if the information that you’re utilizing to decide against a candidate is actually related to their job function, necessary for the safety of the people or private information that person would be required to interact with, and if it’s truly needed for the efficiency of your business. Additionally, the employer must consider the nature of the crime, the time elapsed since the criminal conduct occurred, and the nature of the specific job in question. Finally, prior to excluding the candidate the employer must give the applicant who is excluded by criminal history the opportunity to show why he or she should not be excluded from the process.
For more information on how to use arrest and conviction records correctly during the hiring process, check out the Equal Employment Opportunity Commission article: What You Should Know About the EEOC and Arrest and Conviction Records.
Employers Advantage HR Firm helps companies with Human Resources Compliance when hiring, firing, managing employees, and while drafting HR policies, guidelines, and procedures. For questions concerning this article, or to get help with your hiring practices or procedures, contact us.
Employers Advantage LLC provides HR Consulting services, we are not attorneys and do not provide legal advice.