EEOC guidelines on background checks causing a stir

Posted by Kristina Taylor
July 3, 2012

EEOC guidelines on background checks causing a stir

We know we’ve written about this before, but there seems to be some lingering confusion regarding the Equal Employment Opportunity Commission’s recent guidelines changes to the way background checks are used in pre-employment screening protocols. So we thought we’d try to clear it up.

In April, the EEOC issued new guidance for employers to use when considering arrest and conviction records in employment decisions. It determined that the use of an individual’s criminal history during the interview and hiring process could constitute discrimination and makes an attempt to discourage using the information differently based on an applicant’s race or national origin.

Some employers may have interpreted this in the broadest sense, doing away with criminal records checks as part of their employment screening processes because they’re scared of legal repercussions. But that’s not the safe way to go, nor is it what the EEOC intended. To remain fair and safe, employers should still conduct criminal background checks, but only consider convictions, not arrests. Arrest records are not proof of criminal conduct, so they should not be used as grounds for exclusion. Conviction records, on the other hand, typically serve as sufficient evidence that a person committed a crime. Use of these records by an employer makes good legal and business sense.

Let’s be clear, one more time: The EEOC cannot mandate that employers must refrain from obtaining or using conviction records, nor are its new guidelines trying to dissuade employers from doing so. They simply seek to ensure that such information is not used in a discriminatory way. Employers should not be using a blanket policy, such as “no felony convictions in the last seven years.” Instead, they should review each criminal background report on a case-by-case basis and make sure the company’s background check requirements make sense for that position.

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