Human resource departments and hiring managers are being met with a new challenge when it comes to criminal background checks: individual assessments for the disqualification of a candidate based on their criminal background. Though the U.S. Equal Employment Opportunity Commission (EEOC) has not changed its position these background checks, the EEOC did up the ante in 2012 by issuing detailed guidelines for employers to follow, which includes elimination of blanket hiring policies relating to criminal history.
Noted in the EEOC guidelines is the large increase in individuals who have had contact with the criminal justice system-one in every 31 people back in 2007. There is also a stark contrast among those who are convicted of crimes: African-American and Hispanic men are disproportionally affected.
According to the EEOC guidelines, “African-Americans and Hispanics are arrested at a rate that is two to three times their proportion of the general population. Assuming that current incarceration rates remain unchanged, about one in 17 white men are expected to serve time in prison during their lifetime; by contrast, this rate climbs to one in 6 for Hispanic men, and to one in 3 for African-American men.”
The new guidelines are an attempt to address the disparate treatment in hiring that results from blanket criminal background exclusion policies. National data indicates criminal record exclusions in hiring have a disparate impact based on race and national origin, which violates Title VII and the 1964 Civil Rights Act, according to the EEOC. So, instead of a neutral hiring policy based on criminal history, the EEOC requires employers to ensure that a person is only being excluded from a position based on his or her criminal history if that history relates to the job requirements or business necessity.
Companies are being asked to take a deeper look into someone’s criminal history and answer the following questions:
- What was the crime?
- How long has it been since it occurred?
- Is the conviction still relevant today, given all of the additional facts?
- Does the conviction have relevancy to the available position?
You can have facts that say it just doesn't have any continuing relevance. However, sometimes a person’s criminal history is relevant, and as long as a company documents its reasonable decision making process around the disqualification of the applicant, it should remain within EEOC compliance. An example might be if you are an FDA regulated company involved in pharmaceuticals and an applicant has a controlled substance conviction and they are going to have exposure to controlled substances in their work. That could be a strong basis for a disqualification for that applicant.
Next week, in Part 2, we will look at some suggestions that company can use to ensure that it follows these guidelines. We will also talk about the actual job application form, what it might contain, and how you use some of the information that the applicant provides in regards to previous criminal activity.
About the Author: Tom Dumez has been a guest on the ‘RIMpro Report’ and ‘Inside The Records Room’ internet shows, been published by Storage and Destruction Business magazine, and interviewed by Joanne Finnegan of HCPro, Inc. Tom is president of Prime Compliance, LLC , a Certified HIPAA Professional (CHP), a Certified Security Compliance Specialist (CSCS), and was on the Professional Records and Information Services Management (PRISM) International Board of Directors-January 2011 through December 2012.
Editor’s Note: The views expressed in this article are the opinions of the author. Security Bistro is not responsible for the article’s content or messaging.