Q&A with Paul Ross
Attorney advises cautious use
of criminal background checks.
Q: The Equal Employment Opportunity Commission last week filed two lawsuits alleging employers engaged in race discrimination by conducting criminal background checks on its employees. Is it illegal for employers to perform these background checks?
A: No. Criminal background checks are legitimate tools employers can use. But if checks are used improperly, the process quickly can turn into an illegal one.
Q: Why would criminal background checks by employers be illegal?
A: The EEOC believes criminal background checks may have a disproportionate effect on minority individuals. A company may require all new hires to pass criminal background checks. But if the policy results in a higher number of minority individuals being screened out of employment opportunities, one might argue it has a disparate impact on that minority group. If that disparate impact is proven, the policy would be illegal under federal employment law.
Q: Was that the basis of the two suits filed earlier this week?
A: Yes. In both cases the EEOC appears to have argued the employers disproportionally screened out minority employees by using a criminal-background check process that appeared to apply to all groups equally. In one case, the EEOC alleged the employer rescinded 10 percent of the job offers it had made to black employees after conducting criminal background checks, while only 7 percent of job offers to nonblack candidates were rescinded for the same reason. According to the EEOC, this is a statistically significant disparity.
Q: What can employers do to protect themselves from this type of a lawsuit?
A: The EEOC issued a long, detailed discussion of criminal background check policies last year. Employers should become intimately familiar with those guidelines before using criminal background checks to make employment decisions. A strong human resources professional or employment attorney can help structure a criminal-background check policy around the detailed discussion in that memorandum, including ensuring the employer's policy doesn't automatically exclude a person from employment simply because he or she has a past criminal conviction. To meet EEOC scrutiny, at a minimum, the employer needs to make an individualized inquiry into the particular conviction as it applies to the particular job at issue, and how long ago that conviction occurred.
Q: Why not simply eliminate criminal background checks altogether?
A: Unfortunately it's not that simple. Employers also have obligations under the law to protect employees (and others) from some known or obvious dangers. When employers don't perform background checks, they run the risk of hiring a violent or dishonest person who may harm another — harm the employer may have avoided by conducting a background check and declining to hire that individual.
PAULA BURKES, BUSINESS WRITER