On the subject of criminal background checks, employers are often caught between the proverbial rock and a hard place. On the one hand, use of criminal background checks can, and has, led to discrimination lawsuits in a variety of contexts. On the other, background checks can provide relevant information about candidates and can help the employer avoid a negligent hiring lawsuit. Both the Equal Employment Opportunity Commission and various courts have weighed in on this issue and the guidance they have provided is mixed. Damned if you do, damned if you don’t. This article will provide guidance on the benefits of criminal background checks and how to use them both legally and effectively.
The Current Law on Background Checks
The EEOC has long taken the position that broad use of criminal background checks to screen applicants and policies prohibiting the hiring of applicants with a criminal record are likely to disparately impact minorities, and that employers causing such an impact violates Title VII. Notably, the EEOC does not prohibit, or even recommend against using, criminal background checks to screen applicants. Rather, the EEOC cautions against blind disqualification of an applicant based purely on the fact that the applicant has a criminal record.
