January 20th, 2017 | Debbie Lamb, Sterling Talent Solutions
Five EEOC Lessons Employers Need to Know
The background screening industry is highly regulated by rules which protect both prospective candidates and the background screening companies. The industry is regulated by legislation on all levels of government from federal to state to local districts. The variety of rules can be overwhelming to an employer and if regulations are not complied with properly, an organization might have to deal with penalties. To ensure they respect the rights of applicants and employees, organizations should be aware of their obligations and develop background checking policies that take into account their particular needs, risk tolerance and legal obligations. The key to minimizing the legal risk associated with background screening checks, especially criminal record checks, is having a well-thought out hiring policy in place that accounts for applicable legislation and guidance from the Equal Opportunity Commission (EEOC)
EEOC Compliance Lessons
Sterling continually stays up-to-date on how EEOC guidance and new federal, state and local regulations will impact employment background screening companies. Our recently released white paper, 5 Lessons Employers Need to Know-The EEOC’s Criminal Background Screening Guidance shares five critical lessons learned during the last four years of the EEOC Pre-Employment Inquiries and Arrest and Conviction guidance. The lessons learned can help boost an organization’s confidence in the compliance of their criminal background screening practices.
- Do not practice blanket exclusions of candidates with criminal records – Blanket exclusions, according to the EEOC, may have a disparate impact on certain groups that are protected under Title VII of the Civil Rights Act of 1964. The EEOC guidance recommends eliminating job requirements that reference passing a criminal check and to avoid posting jobs that call for a clean criminal record.
- There are no “safe harbors” for state law conflicts – Title VII takes precedence over state laws allowing for the EEOC to enforce the guidance in situations regulated by state law. The EEOC recommends conducting state-regulated criminal background checks to protect the company and its employees from risky hires.
- Individual assessments are de facto requirements – Individual assessment of a candidate’s criminal background screening results is a safeguard to protect an organization from possible liability. This designation allows candidates who may be excluded from a job opportunity to demonstrate that the exclusion does not apply to them. The employer then determines if the additionally provided information is job-related and consistent with the business necessity.
- Banning the box is recommended for avoiding EEOC scrutiny – Even though there are many cities and states with ban the box laws, currently, there is no federal law that bans the box. EEOC guidelines encourage banning the past criminal convictions checkbox on application to allow ex-offenders a better chance of getting to the interview stage. If you do remove the box on the application form, you still have the ability to ask about criminal history later in the process.
- If a claim is filed against you by the EEOC, anticipate a systemic investigation of your criminal background screening practices – The EEOC will launch investigations in search of systematic-based cases and those investigations could involve scrutiny of company-wide practices that the Commission believes may have a discriminatory impact on large groups or protected individual applicants or employees. If the EEOC finds a pattern or practice that is questionable, it can lead to a class action lawsuit. Organizations can protect their screening policies by having documentation that demonstrates the steps they have taken to avoid discrimination against protected classes.
Review Background Screening Policies and Practices
Organizations who are concerned that they might not be in compliance with the EEOC guidance should review their current screening policies and talk to legal counsel. Companies have to take action to comply with the regulations by talking to legal counsel and having a third party employment screening company that is current on the updated guidelines. Sterling continually stays up-to-date on how EEOC findings and new federal, state and local regulations will impact employment background screening companies. Find out the best practices to lessons learned from the EEOC revised guidelines in our white paper, 5 Lessons Employers Need to Know-The EEOC’s Criminal Background Screening Guidance.
This publication is for informational purposes only and nothing contained in it should be construed as legal advice. We expressly disclaim any warranty or responsibility for damages arising out this information. We encourage you to consult with legal counsel regarding your specific needs. We do not undertake any duty to update previously posted materials.