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Using criminal checks in background screening

Using criminal checks in background screening

By Susan Chance, courtesy of SBAM Approved Partner ASE

More and more employers are using background screening as part of the employment process. This is important for protecting employees as well as the company. These days we see acts of violence happening in the work place far too often in the news. We also see more litigation against employers based not only on what they knew, but what they should have known, so it is logical that background screening is important.


But what information are you getting, and what are you doing with that information? Are you aware of the Equal Employment Opportunity Commission (EEOC) guidance? The EEOC guidance on employer use of criminal history information published in 2012 is still in effect, and the recent voluntary agreement between the EEOC and Rooms to Go shows how important it is to follow those guidelines.


Part of the agreement was for Rooms to Go to revise its policies so that there will no longer be “blanket exclusions” for criminal convictions, and instead gives individualized assessment to each applicant. They have also removed the criminal conviction question from their employment application. This follows the Ban the Box movement which is growing in the number of states and cities which have such policies.


So how does this help? The changes are designed to provide a fair opportunity for employment for applicants. The purpose of removing the criminal conviction question from applications is to move the consideration of criminal records to a later part of the hiring process. Many employers screen out applicants based on their answer to the conviction question without considering their experience or qualifications, creating liability for discrimination claims.


Rooms to Go worked with the EEOC to resolve this issue, and in this case, while the applicant who brought the suit did get some financial payout (the amount was not listed), their willingness to reach an agreement was appreciated by the EEOC and helped them to avoid future litigation by improving their policies.


The EEOC enforces federal laws, such as Title VII, to prevent discrimination. Cases like this one show why it is important for employers to stay abreast of the ever-changing laws, guidance, and regulations regarding employment practices, especially as it relates to background screening. The guidelines cover areas such as:

 

  • Employers’ Use of Criminal History Information

  • The EEOC’s Interest in Employers’ Use of Criminal Records in Employment Screening

  • Disparate Treatment Discrimination and Criminal Records

  • Disparate Impact Discrimination and Criminal Records

  • Determining Disparate Impact of Policies or Practices that Screen Individuals Based on Records of Criminal Conduct

  • Job Related for the Position in Question and Consistent with Business Necessity

  • Positions Subject to Federal Prohibitions or Restrictions on Individuals with Records of Certain Criminal Conduct

Additional information can be found on the EEOC site or through SBAM's Ask An Expert portal.

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