Are Criminal Background Checks Unfairly Discriminatory?

ralph  -  Aug 19, 2011  -  No Comments
By Nathan Koppel

The Equal Employment Opportunity Commission is holding a hearing today on an important topic for companies: Can they consider job applicants’ criminal histories in making hiring decisions?

The hearing will examine the law governing background screening and consider the extent to which individuals with arrest and conviction records face barriers in getting hired.

The hearing comes at a time in which an increasing number of employers are seeking criminal background checks out of security concerns, according to this item in the Washington Post’s Federal Eye blog.  And some advocates, the Post reports, are pushing for legislation that would require certain employers to perform criminal background checks.

But the EEOC, as we noted in this earlier post, has in the past expressed concern that companies may improperly discriminate against minorities, who have been arrested at a disproportionate rate, when they screen out job applicants with criminal records.  The agency has even sued some companies, alleging they have used arrest records improperly.

So, is background screening fair game for employers?

Paul Evans, a partner at Morgan, Lewis, offered the Law Blog some thoughts on the topic. “Employers have legal obligations to protect the safety of their customers and employees,??? he said.  Criminal record checks “allow employers to meet these obligations by ensuring that individuals with violent histories are not hired into roles, such as in-home service technician roles, that provide them with private access to customers and employees.???

Companies, he added, typically do not implement blanket prohibitions against hiring applicants with a criminal record. “In my experience, employers have well-reasoned criminal record check policies tailored to the jobs for which they are hiring,??? Evans said.

An EEOC spokeswoman told the Law Blog that the agency is concerned that the employers may be prone to weed out applicants who have long-ago arrests that never led to a conviction. “It is of great concern to us that inaccurate information might be used to deny people employment,??? she said. “This is also an economic concern for communities, because if ex-offenders are not given jobs the chances are that they may re-offend,??? she added.

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