Dissecting the EEOC’s Position on Criminal Background Checks

Nick Fishman

Last week we started to discuss the EEOC’s official position on employment background checks and how it affects employers.  We listed three areas of focus that we wanted to dissect in further detail (see below).  Today, we’ll focus on the criminal background check. And I soon began to realize that this specific area of focus would need to be broken into separate segments in order to avoid an Illiad-like post.  That said, let’s just address the EEOC concerns, who is using criminal background checks and how they are using them.

The EEOC is concerned that using criminal records in the hiring process creates a disparate impact on minorities since they are arrested and convicted with much greater frequency than others.  This might be true, but does it outweigh an employers right to know in order to make an informed hiring decision?

In a study conducted by EmployeeScreenIQ earlier this year, we found that 92% of employers indicated that they conduct employment background checks.  Of those organizations:

  • 90% of them check for criminal records at the county level
  • 84% do so through a national database and
  • 35% search for criminal records by submitting fingerprints to their state and, or the FBI
  • Nearly all of those who used them indicated that this practice was a high priority in the hiring process

However, we should have followed up and asked how influential specific types of criminal record were when making a hiring decision.

Thankfully, the folks at SHRM did just that (see below).  Their study released earlier this year echoed the usage numbers above.  However, they also found the following information in regards to adverse hiring decisions based on criminal records:

  • 97% said that the the severity of the criminal record was somewhat to very influential
  • 95% are influenced by the number of convictions
  • 93% consider the relevancy to the position the candidate was applying for
  • 95% are influenced by the length of time since the criminal activity
  • 81% considered the age of the person at the time the crime took place
So clearly, criminal background checks are important to employers and for good reason. The SHRM study also asked why employers these checks as part of their employment screening program.
  • 61% want to ensure a safe working environment
  • 51% want to insulate themselves claims of negligent hiring
  • 39% want to reduce the opportunity of theft, embezzlement, etc.
  • 20% want to comply with state or licensing requirements
  • 12% want to evaluate the overall trustworthiness of a candidate

These statistics are important because they show that employers are taking responsible steps to ensure they make responsible hiring decisions when it comes to criminal records. An area of concern though is that 26% of those polled said they were somewhat influenced by arrest records that did not result in a conviction and 5% were to heavily influenced by the same.

Here’s where I imagine the EEOC is going to be particularly concerned.  In most states, employers can consider arrests that took place over the last 7 years. And certainly employers will be concerned about arrests with pending cases.  However, this gray area is where employers can get into trouble.  Employers have to walk a fine line here in determining if a not guilty finding or dismissal should be used in the hiring decision.

That issue aside, you cannot argue that a criminal background check is an important factor in the hiring process.  It is one that is widely used and further, widely expected to be used.  In many cases employers are mandated by their state or regulatory requirements to conduct these checks. And employers who choose not to conduct these searches open themselves to significant liability and loss.

In subsequent posts, we’ll discuss how employers can/should make their decisions when they identify a criminal record and some tools in the marketplace that are designed to make this decisions consistently.

Nick Fishman
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Nick Fishman

Nick Fishman is the co-founder of EmployeeScreenIQ, a leading, global employment background screening provider, and serves as the company’s executive vice president and chief marketing officer. He pioneered the creation of EmployeeScreen University, the #1 educational resource on employment background checks for human resources, security and risk management professionals. A recognized industry expert, Nick is a frequent author, presenter and contributor to the news media. Nick is also a licensed private investigator in the states of Ohio and Texas.
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  • Name Ian

    You stated “The EEOC is concerned that using criminal records in the hiring process creates a disparate impact on minorities since they are arrested and convicted with much greater frequency than others”

    From what I have read, their stance is about using Arrest Records that did not result in convictions, NOT about records that resulted in convictions.(see below)

    “The Commission concludes that since the use of arrest records as an absolute bar to employment has a disparate impact on some protected groups, such records alone cannot be used to routinely exclude persons from employment. However, conduct which indicates unsuitability for a particular position is a basis for exclusion. Where it appears that the applicant or employee engaged in the conduct for which he was arrested and that the conduct is job-related and relatively recent, exclusion is justified.”