May 17 2015 EEO Guidelines Present Business Challenge
Criminal Background Check Guidelines
Criminal Background checks are widely used across the nation. Within the last two years, the Equal Employment Opportunity Commission (EEOC) has outlined rules and provided guidance that is intended to prevent employers from discriminating potential hires on the basis of race or other impermissible factors.
The result is that employers feel restricted with respect to what and when information may be accessed during the hiring process and then held responsible if a new hire has an inappropriate background that causes harm or commits a crime that they may be held liable for.
In order to fairly treat potential hires, guidelines were issued in April 2012 because certain minority groups experience disproportionately higher incarceration rates. In order to prevent the disparate treatment of individuals, the use of criminal history information may not be used to inadvertently or purposefully disqualify suitable applicants for positions where specific history would not be related.
The EEOC has required employers to demonstrate a reasonable business need for utilizing criminal background information. Employers must demonstrate that hiring decisions based on criminal history is reviewed and decided on an individual basis.
The guidance is detailed and includes evaluating the possible position, nature of the criminal offense, how long ago it was committed as well as allowing an individual an opportunity to show that they should not be excluded based solely on their criminal history. Some employers believe that the guidance document is too complex, limiting and opens them to possible penalties and the possibility of expensive discrimination lawsuits.
Concerns about the EEOC changes are being expressed from many sides. Business representatives and lawmakers who participated in Congressional hearings by the “House Education & the Workforce Subcommittee on Workforce Protections” stated that the agency’s position on criminal background history puts consumers at risk and limits employers decisions.
The American public expects employers to act appropriately by screening and hiring safe and responsible workers. Employment positions affecting the safety of the public including those who work in private homes, directly with children, the elderly or individuals who are impaired must be acceptable and cleared of a deleterious or dangerous criminal history.
Recent laws enacted within 13 states and 60 municipalities, have prohibited employers from ascertaining an individual’s criminal history on initial job applications. “Ban the box” rules delay employers from obtaining a criminal background check until later in the hiring process after other qualifications are met
The EEOC has based their position on a federal law issued in 1975.
The intention is to allow fair opportunities for employment for those individuals whose criminal histories are long in the past, have been resolved or are not relevant to the employment position being discussed.
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