Does Your Criminal Background Check Policy Protect You?



Do you conduct criminal background checks for your job candidates? If so, while you’re in line with about two-thirds of U.S. organizations, your policies regarding this issue could come under scrutiny.

That’s what happened to Apple recently, whose refusal to employ felons in the construction of its new $5 billion headquarters has come under some pretty intense fire.

The logic says that discriminating against those with criminal records eliminates roughly 70 million potential applicants, a statistically significant percentage of those being otherwise protected minorities.

Under pressure, Apple has since rescinded its policy and says it will evaluate applicants on a “case by case” basis, as it does for all internal job seekers.

The human factor

While we all know certain forms of discrimination have been clearly (and rightly) illegal since the 1964 Civil Rights Act, we also know that hiring managers, being humans after all, have discriminated and always will discriminate, if not on illegal grounds, on a myriad of legal ones.

Maybe the applicant was too talkative or not talkative enough, or maybe the hiring manager just didn’t like the way the candidate looked at them, or the way their handshake felt.

Whatever the preference, there have always been, and always will be, legal reasons to discriminate that have nothing to do with skin color, nationality, or any other protected category.

As Apple recently learned, however, that list is growing shorter and shorter by the day.

Arrest records

For example, it’s always been unacceptable to discriminate based on arrest records, but until recently a felony conviction has been a pretty safe way to weed out applicants. After all, nobody wants to work next to rapists and axe murderers, right?

Not so fast! Hide your wallets and your children, folks, because according to relatively recent EEOC guidelines, blanket “no felon” hiring policies are no longer Title VII compliant.

Although the guidelines on this topic have been out since 2012, many companies are still slow on the uptake. It’s only common sense, after all, to want to protect your employees and customers.

Here’s the logic – Since certain protected groups statistically commit crimes at a higher rate than non-protected groups, and thus fall under the category of “felon,” a blanket discrimination policy against felons would affect said protected groups at a disproportionate rate, thus causing a disparate impact. Here it is, straight from the EEOC

“Using criminal history information to make employment decisions may violate Title VII of the Civil Rights Act of 1964, as amended (Title VII).

Title VII prohibits employers from treating people with similar criminal records differently because of their race, national origin, or another Title VII-protected characteristic (which includes color, sex, and religion).

Title VII prohibits employers from using policies or practices that screen individuals based on criminal history information if:

     They significantly disadvantage Title VII-protected individuals such as African Americans and Hispanics; AND

     They do not help the employer accurately decide if the person is likely to be a responsible, reliable, or safe employee.”

So, should companies stop doing background checks? Remember, the EEOC isn’t saying we have to discontinue doing background checks or ignore the background information altogether. Besides, none of us want to face the other side of this tricky HR coin, a negligent hiring lawsuit!

The safe route would be to conduct post-offer criminal background checks, but make job offers contingent upon an “acceptable” background check, not necessarily a clean one.

Carefully consider the results in light of the specific duties of the job and the age and seriousness of the offense.

One would not be expected to hire, for example, someone convicted of theft or embezzlement to handle money, or a person convinced of a child-related offense to work with children.

While most of the situations HR professionals face won’t be as cut and dry as those, using the correct logic and principles in these situations should keep the EEO and the lawyers at bay, at least until they go and decide to change something else!


This post originally appeared on Staffing Talk.