Given that EEOC background check guidelines are geared towards preventing discrimination based on race and national origin, employers must take care when exercising background checks to ensure that they are legal, and effective. According to EEOC guidance on criminal background checks, employers’ use of individuals’ criminal history in making employment decisions could be considered employment discrimination under Title VII of the Civil Rights Act of 1964.

Consider the following fundamentals to be upheld when conducting background checks under the umbrella of EEOC Guidance. These fundamentals are intended to serve as an outline to employers as the strategy for encouraging their best workforce and troubleshooting against bad hires before they happen, given that they are considering criminal record information as part of employment decisions.

Fundamental #1: Don’t utilize blanket policies or practices that exclude people from employment based on any criminal record

When it comes to criminal records, it is inappropriate to apply one policy across all applicants, and across all opportunities of employment that are available at a company. Under EEOC guidance on background checks, this is a form of discrimination, due to the possibility of inherently discriminating certain groups protected under Title VII. Therefore, the most effective practice is to detail which offenses would make a candidate unsuitable for a position, and why. In effect, the employer has justified narrowing his employee search, and not all applicants are indiscriminately disqualified from the job simply because they have a criminal record. For some companies, it is viable to consider hiring individuals with a criminal record, which will require well-developed policies and procedures to ensure proper evaluation of such applicants, as well as counteract any possibility for discrimination.

As defined above, the EEOC’s enforcement of Title VII prohibits employment discrimination based on race, color, religion, sex, or national origin; it does not specifically extend protection based on criminal record. However, the EEOC does provide that an employer has violated Title VII in a case in which the plaintiff demonstrates that a neutral policy/practice has disproportionately screened out the groups protected by Title VII without having linked the exclusion of the groups to reasons that would make them unsuitable to the job.

In essence, unless the employer uses specific policies and practices to identify groups and demonstrate reasoning for their inherent inability to fulfill employment necessities, then discrimination under the EEOC has ensued. Consideration must be given to which types of criminal records make an individual unsuitable to which types of jobs. The burden of exemplifying the incongruence between certain criminality and fulfilling job tasks falls on the employer.

By the same token, employers who are open to hiring individuals with a criminal record must specifically detail policies and practices in order to ensure that their business objectives are met, and that they provide well-reasoned policies for the types of criminal records that they chose to consider as potential hires.

Ultimately, this and the ensuing fundamentals ensure that the hiring process aims to evaluate the candidate’s compatibility with the specific position, as opposed to close-mindedly discriminating with the aim to disqualify applicants based on one attribute.

Fundamental #2: Train managers, hiring officials and decision makers about Title VII and its prohibition on employment discrimination

In order to apply policies and procedures in a way that is consistent with Title VII, it is crucial to train managers, hiring officials, and decision makers about the objectives of the policy, and means of achieving quality employment under Title VII prohibitions. In order to ensure that your workforce is trained to make both effective and nondiscriminatory hiring decisions, it is invaluable to provide extensive, trusted training that informs decision makers of company hiring goals. This encourages compliance with Title VII and hiring decisions aimed at continuing company culture and progress.

Fundamental #3: Determine the specific offenses that may demonstrate unfitness for performing such jobs

By specifically detailing the offenses that may make a person unsuitable for the job, the employer troubleshoots counter-productive hiring decisions without violating EEOC provisions. As an employer, if you are able to identify job components that must be fulfilled and evidence the reasons that specific offenses make an individual an appropriate or inappropriate candidate, then you have effectively explained why a certain trait is or is not undesirable for the position. The reason for this EEOC guidance on background checks is, again, to prevent against underdeveloped consideration of a possible candidate, simply because they had some capacity of a criminal record. Unless specifically justified, a company is expected to consider the candidate fairly.

Fundamental #4: Include an individualized assessment

As a component of implementing these specifically designed policies and practices, employers must include an individualized assessment of the duration that criminal conduct affects ones ability to complete the job. This requirement ensures that specific attention is given to each case, which is important when hiring individuals with a criminal record. Not all cases of criminal records are identical, and accounting for duration further tailors the policy to show that the decision is a comprehensive one, rooted in thoughtful consideration of each capacity of criminal activity. An individual’s ripeness for certain employment will be evaluated based on all details of their personal criminal record.

Fundamental #5: Record the justification for the policy and procedures 

In order to uphold the aforementioned best practices, employers should record detailed justification for respective policies and procedures, as well as consultations and research that were pursued in their development. This allows for consistent implementation, fulfillment of best practices, and also delineates a company’s EEOC hiring compliance.

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