EEOC and Criminal Background Checks
The Equal Employment Opportunity Commission (EEOC) was created as a part of Title VII of the Civil Rights Act of 1964. This agency enforces laws that protect employees from discrimination. Many employers use criminal background checks and employment verification processes to identify the best candidates during the hiring process. However, these checks must be EEOC compliant, or the employer could end up in legal trouble.
The rationale behind the EEOC is that using a seemingly neutral policy (such as specific information on a background report) to make hiring decisions may adversely and disproportionately impact certain groups, such as underrepresented minorities. Despite this, background checks can provide a lot of information relevant to personnel decisions, including hiring, promotion, and reassignment. But these checks must be EEOC compliant.
To comply with federal laws related to discrimination, employers should be aware of what precisely the EEOC requires before the check is conducted, what information can be used to make hiring decisions, and how this information must be disposed of when the employer no longer has a use for it.
What You Need to Know Before Conducting a Background Check
Ultimately, the EEOC’s goal is to ensure that everyone is treated equally and fairly, which means that hiring decisions cannot be made based on race, national origin, color, sex, religion, disability, genetic information, or age. In fact, if an employer were to ask a job candidate about any of this information, it could be interpreted as discrimination, and the employer may be legally liable.
If you use a company to conduct your background checks, you must also notify the applicant that you will be using the information to make employment decisions. You must also provide information related to the background check’s scope and obtain their written permission authorizing you to carry out the background check.
How to Use Information from a Background Check in Making Hiring Decisions
If you are using information obtained through a background check, you must be sure that it is not used to discriminate in a way that violates federal law. This means that employers must apply the same standards to everyone, regardless of race, national origin, color, sex, religion, disability, genetic information, or age. For instance, you cannot reject applicants of one gender or race who have specific information on their financial history or criminal record but accept candidates of a different gender or race with similar details in their background report. If you adopt a policy, it must be applied uniformly to all candidates.
This practice can be difficult when you decide based on information that disproportionately impacts certain groups, particularly if that information does not accurately predict who may be a responsible employee or is not job-related and sought out of a business necessity. You may also have to make exceptions for information found in certain background checks. For instance, if you discover negative information in the background check for someone with a disability, it may be a good idea to allow them to demonstrate their ability to do the job before making a decision.
When you decide not to hire someone based on information discovered in their background check, the Federal Trade Commission has additional requirements. The employer must provide the applicant or employee with a copy of the report and explain any negative information. You must also inform them that they are being rejected based on the information disclosed in the report and provide details about disputing the report’s accuracy, which can be done within 60 days. The employer must also provide the company’s information that procured the report and information explaining that the third-party company did not make the hiring decision.
The information compiled for the employer during a background check must be kept for one year after the record was made or the employment action was taken. This term is two years for educational and governmental institutions. If an applicant or employee files charges for discrimination, it’s essential to keep all records until the case concludes.
Criminal background checks are one of the best tools employers have to make intelligent, informed personnel decisions that reduce overhead costs and lower turnover rates. But not complying with the EEOC is incredibly risky and can cause massive legal fallout. Working with a skilled company with an excellent history of conducting background checks compliant with the EEOC can prevent these problems before they even start. It is one of the best ways to maintain compliance and still benefit from background checks.