Employers who decide to implement a background screening process for job applicants, or engage the services of a third party to do it for them, will immediately discover an assortment of challenging and involved statutes, laws, and regulations.
State Regulations
Care must be taken when choosing not to hire based on background check results. The following states have “job relatedness” requirements for the use of criminal history: WI, NY, PA, HI, MO, KS, and Puerto Rico. Criminal histories must be shown to have a detrimental effect on an applicant’s ability to perform the job if they’re used as a dis-qualifier.
Disparate Impact
Even a perceived neutral policy can have an adverse / disparate impact on certain protected groups. Title VII Civil Rights Act of 1964 prohibits employers from using neutral tests or selection procedures that have the effect of disproportionately excluding persons based on race, color, religion, sex, or national origin, where the tests or selection procedures are not “job-related and consistent with business necessity.” This is called “disparate impact” discrimination.
Job Relatedness/Business Necessity
The EEOC has given more detail about each factor to be considered when hiring based on a background check. The nature and gravity of the offense is to include the harm caused, the legal elements of the crime and the classification (misdemeanor vs. felony). Time since the conviction and/or completion of the sentence is to include evaluation of recidivism. The nature of the job is more than just job title; evaluation of specific duties, essential functions, and environment all need to be considered.
The argument is that people of certain races and national origins are arrested more frequently than others outside of those groups and/or have negative credit information; that information then causes a disparate impact on certain minority groups when used by employers.
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NOTE: The contents of this article are not legal advice for your particular situation. You should neither act nor rely upon anything stated in this article without first consulting your own legal counsel.
