To rule out potential employee issues before they begin, many employers conduct extensive background, motor vehicle records and reference checks. But employers should also stay up to date on EEOC policies to avoid crossing the line when making a judgment about a prospective employee based on information from the individual’s past.
While the EEOC cannot set binding rules, business owners shouldn’t underestimate EEOC guidelines.
“Policy guidances tell businesses what practices the EEOC considers suspect under Title VII and, therefore, what practices will trigger a costly EEOC investigation. Thus, businesses are well advised to adhere to the guidances,” wrote Peter Kirsanow and Carissa Mulder in a recent opinion piece in the National Review.
Last April, the EEOC issued a policy regarding pre-employment criminal background checks. The Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions discourages businesses from immediately rejecting applicants because of past criminal misconduct. Instead, employers are urged to allow ex-offender applicants a chance to explain their past.
The standard also suggests that businesses refrain from asking about past convictions in job applications all together. At the very least, the EEOC recommends businesses stop asking for past arrests – because “an arrest without a conviction is not generally an acceptable reason to deny employment.”
This crackdown on criminal background checks does not mean employers cannot use criminal background checks altogether, but it does mean that employers should be wary of disparate treatment. Employers are simply encouraged to give hires a chance.
And while some employees, such as teachers, daycare providers, and nurses may be subject to state-required conduct pre-employment background checks, this does not override federal discrimination laws.