Employers adjust criminal background check methods

Employers have many legitimate reasons for conducting criminal background checks, from mitigating the risk of workplace violence and negligent hiring lawsuits to reducing employee theft. Those that reject candidates based solely on convictions or arrests, however, face a different kind of threat. 

 

The U.S. Equal Employment Opportunity Commission has taken the position that criminal background checks may violate anti-discrimination laws because minorities are arrested and convicted of crimes at higher rates than non-minorities, said Patricia Weisberg, an attorney with the Cleveland law firm Walter Haverfield LLP. While the commission has yet to win a discrimination lawsuit based on criminal history screening practices, there is little question employers are under more scrutiny for pre-hire procedures. 

 

The EEOC in 2012 released a detailed guidance on the issue. Among other less rigorous recommendations, it advised employers to engage in an “individualized assessment” before disqualifying an applicant who has a criminal record, Weisberg said. That often means no more asking individuals to self-disclose past criminal convictions on job applications. It also means contacting applicants after a criminal background search has turned up a red flag and giving each individual a chance to explain the circumstances or state how he or she has been rehabilitated. 

 

“The guidance does not prohibit employers from inquiring about applicants' criminal histories. But how they choose to act upon that information could cause them to be held in violation,” Weisberg said. 

 

Jason Morris, president and chief operating officer of EmployeeScreenIQ, a Cleveland-based employment screening company, said companies are embracing the “individual assessment” protocol, though a bit reluctantly. 

 

“It's not entirely popular,” he said, adding that the commission's ambiguity is partly to blame for the mixed reviews. “The EEOC said it is not law, but they are suing you if you are not following it.”