More Reaction to EEOC Criminal Background Check Guidelines

Nick Fishman

It’s been a little over a month since the EEOC introduced new guidelines on the use of criminal records for employers and so far the general reaction we are hearing from the marketplace is confusion.  Some examples:

  • Do I need to remove the question that asks if the applicant has been convicted of a crime?
  • What is an individual assessment?
  • What kind of process and paperwork is this now going to require?

Well, we still don’t have any substantive answers, but we are keeping our ears and eyes open for interesting opinions on the subject.

Check out this essay written by Hans von Spakovsky of  The Heritage Foundation entitled, “The Dangerous Impact of Barring Criminal Background Checks: Congress Needs to Overrule the EEOC’s New Employment “Guidelines”.

Now, I’ll preface this by saying that the Heritage Foundation is definitely a conservative think tank and that I considered not posting this for that fact (that and Rush Limbaugh is on their home page).  However, this essay is being picked up by a number of media outlets throughout the country.  So, I’ll leave it up to you to determine if this is politically motivated or a genuine attempt to highlight a counter argument to the EEOC’s position (or both).

The author is a former counsel to the assistant attorney general for Civil Rights and the Department of Justice.  And his contention that the EEOC’s goal to eradicate a disparate impact on minorities in this regard could actually lead to overt discrimination is eerily similar to the warning issued by U.S. Civil Rights Commissioner, Peter Kirsanow.

I’m posting the abstract from the essay below.

Abstract: The EEOC’s new criminal background check “Enforcement Guidance” is potentially unlawful and certainly ill advised. In addition to lowering minority hiring rates and exposing employers to crushing liability, this new Guidance places employers in a vicious “Catch 22” situation: Business owners will have to choose between conducting criminal background checks and risking liability for supposedly violating Title VII or following the EEOC’s Guidance, abandoning background checks, and risking liability for criminal conduct by employees. Furthermore, failing to conduct such background checks places the public at risk, as violent offenders might go for years before lashing out at customers or co-workers. The U.S. House of Representatives and the Senate have already taken some actions to stop enforcement of this Guidance, but more is needed.

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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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  • While it would seem the guidelines have introduced more problems than they solve, I still think they are a step in the right direction. Employers are too quick to not hire someone or to let them go because of a mistake that person may have made years ago.

  • Nick Fishman

    I’m not sure I agree with you Dave. If the offense was egregious (murder, rape, armed robbery, etc.), yes, it can certainly follow you for a long period of time. In fact, the EEOC even made note of the fact in their guidance that there are some offenses that make a person unhireable for certain jobs. But by and large, once an employer locks on to the perfect candidate, they are looking for every reason to hire, not exclude them. As I’m sure you know, finding the right candidate with the necessary qualifications and experience is getting harder and harder these days.

  • Well Nick, of course serious charges are a different story, but I’m talking more about jobs where a highly qualified individual isn’t as important as simply finding someone to fill the position. I have gotten emails from people denied a job because of a DUI from a decade ago simply because at this point it’s an employers market.

  • Carl Sitskey

    Dave is right on here. The Wells Fargo employee who, was fired after a background check revealed that he put a cardboard dime into a washing machine back in the 60’s, with no other history since, is a good example. Certainly, the statute of limitations should apply to this process, as should common sense. The process is getting extremely difficult because of the concern liability issues. Torte reform would be a better way to bring reason to the hiring process, not overly invasive screening.