EEOC Guide Fails to Give Constructive Guidance Regarding Use of Background Checks

Posted by Jeanine Gagliardi on Thu, 04/24/2014 - 04:00

We previously cautioned businesses to take care when using background checks in the hiring process. The EEOC, the agency tasked with enforcing federal employment discrimination laws, has been aggressive in suing employers to try to stop what it perceives as discriminatory use of background checks.

The EEOC perceives the use of background checks as discriminatory if the use has a disparate impact on members of a protected class unless business necessity mandates a clean background. For example, because arrest and incarceration rates for minority men are higher than for other groups, the EEOC deems hiring decisions based on criminal background to be discriminatory, unless they are necessitated by the employer’s business.

The EEOC, jointly with the FTC, recently issued technical assistance documents concerning the use of background checks in the employment context. The documents, one directed to employers and one to employees, purport to set forth what employers and employees need to know about the use of background checks.

Unfortunately for employers, the documents do not provide any reasonable guidance as to how to use background checks in a non-discriminatory manner. Instead, they merely remind employers that:

(1) There is no blanket ban on the use of background checks;

(2) Special care must be taken to avoid disparately impacting members of a particular class; and

(3) State laws may impose additional restrictions on the use of background checks.

In effect, employers are still on their own in navigating a complicated area of law where getting it wrong can get you sued by the government. The best course is to be sure a clean background is essential to the particular job position and to be sure to document the reasons justifying the use of a check.

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