Do Employers Care About EEOC Guidance on Criminal Background Checks?
April 25, 2013
Last month, we released our official 2013 Employment Background Check Trends Survey report. The report includes findings from nearly 1,000 Human Resources professionals in various industries across the United States, who responded to our survey on background checks for employment at the end of 2012 and the beginning of 2013.
Anyone who has followed this blog knows that we’ve dedicated a lot of time over the last 12 months discussing the Equal Employment Opportunity Commission’s new guidance to employers on the use of criminal background checks. So, as the one year anniversary of this
legislation (I mean guidance:)) is upon us, I thought we could review how our survey respondents characterized their knowledge of the guidance and how their companies have responded.
The new EEOC guidance on criminal background checks (released April 2012) has caused my organization to:
Of the nearly 70% of respondents who said that their organizations have reviewed the EEOC guidance on criminal background checks, slightly more than half of them have not made changes to their pre-employment background screening policies based on that guidance, while slightly less than half have made changes. More noteworthy, however, is the 32% of respondents who either aren’t familiar with or haven’t reviewed the EEOC’s guidance.
Last week, I was fortunate enough to hear the one EEOC commissioner who dissented from the guidance, Constance Barker, speak about what what we’ve learned about the new guidance over the past year. My colleague Angela Preston, wrote the following about Commissioner Barker’s remarks:
A year has passed, and little has changed. Barker made it clear that the EEOC is still very committed to increased enforcement, and will continue to pursue “systemic” cases, where a pattern or practice has a broad impact on a large population though disparate impact theory. As she put it, the EEOC criminal guidance starts with the premise that, if you are conducting criminal background checks, there is presumption that you are discriminating. Until this premise has been successfully challenged in court, employers need to be prepared to defend class action suits.
But it’s only guidance, right? The EEOC, by design, does not have authority to write rules or regulations. But as Barker pointed out, until a court says it will not apply the guidance, the guidance has the effect of a regulation. And once a court is persuaded by and cites to the guidance, it becomes law. We knew it would take some time for the guidance to be addressed by the courts, and we are still waiting for pending litigation to shed some light on the effect of the guidance.
We would strongly encourage employers to familiarize themselves with the new guidance and evaluate their organizations’ policies and practices.
Download Complete Survey