In July, I spoke at the Texas Employment Relations Symposium in San Antonio sponsored by the Texas Association of Business and SHRM Texas State Council. This is one of the finest single-day employment law conferences in the state. (Full disclosure: I sit on both organizations’ boards.)
My presentation was Background Checks Under Fire: Policy Considerations to Avoid Discrimination Claims, which is my most popular webinar and SHRM chapter presentation. My main goal with this presentation is to give employers some peace of mind – the sky isn’t falling.
Sure, last year the EEOC came out with a new guidance for employers about the use of criminal records but that isn’t a law or even a binding regulation. It is simply the EEOC’s opinion about what employers should be doing to comply with Title VII. (By the way, the Attorneys General from eight states wrote a scathing letter to the EEOC last week complaining about the EEOC’s guidance document and the recent Title VII cases against Dollar General and BMW.)
A little history: Title VII hasn’t changed with respect to this topic since 1991 and according to a Seton Law School Law Review article critical of the EEOC’s guidance and litigation in this area, no plaintiff has won a disparate impact case related to an employers’ use of criminal records since the 1975 Eight Circuit Court of Appeals federal case Green v. Missouri Pacific Railroad.
In Green, MoPac followed “an absolute policy of refusing consideration for employment to any person convicted of a crime other than a minor traffic offense.” The court found that this very broad exclusion had a disparate impact on black applicants:
We cannot conceive of any business necessity that would automatically place every individual convicted of any offense, except a minor traffic offense, in the permanent ranks of the unemployed. This is particularly true for blacks who have suffered and still suffer from the burdens of discrimination in our society. To deny job opportunities to these individuals because of some conduct which may be remote in time or does not significantly bear upon the particular job requirements is an unnecessarily harsh and unjust burden.
My experience is that most employers, almost 40 years after Green, have a more nuanced approach to their use of criminal records in evaluating prospective employees. They look at the the extent of the individual’s criminal record and the nature of the offense(s) committed in light of the position for which the individual is being considered.
However, the EEOC’s position is that employers should give almost every applicant who might be disqualified from employment due to a relevant job-related criminal offense a chance to explain to the employer why the employer’s policy should not apply to them. I don’t know any HR people who have time to do that. However, in the webinar, I do have some practical suggestions for employers on how to approach this.
Our website has an overview of employer’s responsibilities under Title VII and other laws. Also, my free Background Checks Under Fire webinar covers this issue and, I hope, shares some practical ways to comply with Title VII and be fair to former offenders (regardless of their race) and still ensure that you have a safe and competent workforce.
In some states and municipalities, there is an emerging trend prohibiting employers from inquiring about applicants’ criminal histories on the employment application. It is a bad idea for a lot of reasons and I blogged about it last week.
The other big law affecting background checks is the Fair Credit Reporting Act. Being out of compliance here can get you in hot water pretty quickly but the good news is that FCRA compliance is simple. The Imperative website has a good one-page overview and I also have a free webinar available on that topic, too!
Compliance is important and you certainly want to keep your company out of regulators’ and lawyers’ crosshairs. However, maintaining a safe, competent, and reliable workforce is also imperative. I hope I can help you work out practical ways for your organization to meet both objectives.
As always, call if I can be of service! 877-473-2287