Is the EEOC Forcing You To Change How You Hire?

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With today’s struggling economy and highly competitive job market, employers are being asked to make tough decisions about well-qualified applicants during the hiring process.

A pre-employment background check can add much-needed clarity to this process, by verifying an applicant’s stated credentials and revealing important risk factors in the applicant’s history.

Essentially, a background check can help you identify unqualified or high-risk applicants and therefore mitigate potential issues before they pose a threat to your organization.

For obvious reasons, many employers have incorporated a criminal records search into their pre-employment background checks, since these searches can uncover crucial information about applicants and the possible risks they pose to an organization.

Though some criminal history information is, of course, more severe than others, some organizations historically felt comfortable taking a hard-line stance against applicants with any sort of criminal record—a position they’re reconsidering in light of a changing regulatory climate.

This regulatory environment is moving from a proactive and concerned business approach to a limited inquiry on a need-to-know basis.

For example, the U.S. Equal Employment Opportunities Commission (EEOC) is taking the position that, given the disproportionate rate of minorities who are arrested and convicted of crimes, an employer’s policy of disqualifying all applicants with a criminal background can have a discriminatory impact on minority candidates and therefore would be in violation of Title VII of the Civil Rights Act.

The EEOC has been joined by some state legislatures, which are also examining employers’ use of criminal records information as part of the hiring process.

As a result, employers should now rethink their hiring strategies, since a one-size-fits-all approach to conducting pre-employment background checks probably doesn’t pass muster anymore.

Rather, organizations should move to a position-by-position consideration, determining what information is relevant and helpful, not to mention non-discriminatory, when it is used to assess a candidate’s suitability for employment.

When conducting a pre-employment background check, you should begin the process by asking yourself, “What are we going to do with the results?”. As you think about this question, it is important to remember the EEOC’s announced suspicions of over-emphasizing the value of criminal history information during the hiring process.

Organizations must be able to defend any questioning to the relevance of their checks, and also realize that there may be information that they are using that regulators consider to be discriminatory and only marginally relevant for hiring a qualified applicant.

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