EEOC Updates on How to Use Background Checks

May 07, 2012 | Leave a Comment

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For years, the Equal Employment Opportunity Commission (EEOC) has taken the position that making employment decisions solely based on an applicant’s criminal record may violate Title VII guidelines.  Additionally, they have argued that such decisions may result in disparate impact.  Recently, the (EEOC) issued an updated Enforcement Guidance with regards to how employers should use background checks in conjunction with hiring, terminations and other employment decisions. 

Below is a brief overview that all employers should review:

  • Eliminate all “catch-all” policies or verbiage.  (i.e. the company will only hire those candidates with no criminal record). 
  • Review each candidate and situation on a case by case basis.  Identify the nature & gravity of the criminal offense, the time passed since it occurred, the sentence completed, and the nature of the job in question.  Someone applying for a receptionist job who was convicted of a DUI 10 years ago should not be overlooked for that one offense.  However, someone applying to work in a day care who was arrested for a sexual offense 2 year ago may not be the best candidate.
  • Review what requirements are “job related and consistent with business necessity”.  Does someone who’s sitting at a desk all day really need to have a clean driving record?  Probably not.  But the person who’s responsible for driving your delivery truck should at least have a recent clean record.  Will that speeding ticket from 1996 matter?  Doubtful.
  • Remove blanket questions on your application or interview process that ask if the candidate has ever been convicted of a crime.  Simply answering “yes” to such a question does not provide sufficient enough information as to whether or not the conviction is job related, or if the crime was severe or recent enough to warrant concerns about continued unsavory conduct or behavior.

Should you have additional questions, please contact Bethany Holliday, TotalHR Director at 314-373-2982 or

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