Employers Best Not Use Criminal Records Background Checks as a One Size Fits All

Criminal records background checks are not a one size fits all.   While most employers do conduct criminal background checks as part of their employment screening program, the idea is to use them wisely.  Wisely, in this case, means don't be indiscriminate to where you can get yourself in trouble with the  Equal  Employment Opportunity Commission (EEOC).   Pepsi Beverages just found its blanket policy, regarding criminal records background checks, cost them a hefty $3.1 Million in settlement fines.

According to the more recent regulations implemented by the EEOC, a candidate's criminal convictions must reflect some relevance to the job for which the candidate is applying.  According to the general EEOC guidelines, and I am simplifying, it may not be relevant for a candidate applying for a position in the motor pool, if he was convicted of a non-violent crime.  But a job applicant convicted of financial fraud wouldn't be eligible for a position in the financial department.

A blanket policy that excludes everyone convicted of a crime is not considered a warranted employment policy.   And, worse, if the applicant was merely arrested or charged, but never convicted, the EEOC has ruled that excluding that candidate from consideration can be discriminatory.    The contention is that many of those with convictions are racial minorities, and therefore such a blanket policy can prove discriminatory.   There is also the matter of the age of the crime, how long ago someone was convicted.  Then consideration should be given for the severity of the crime.

In the recent case where the EEOC sued Pepsico, the article in the Associated Press reports...."

"EEOC officials said the company's policy of not hiring workers with arrest records disproportionately excluded more than 300 black applicants. The policy barred applicants who had been arrested, but not convicted of a crime, and denied employment to others who were convicted of minor offenses.

Using arrest and conviction records to deny employment can be illegal if it's irrelevant for the job, according to the EEOC, which enforces the nation's employment discrimination laws. The agency says such blanket policies can limit job opportunities for minorities with higher arrest and conviction rates than whites."

This is an imperfect world and there will always be discrimination of some kind.  The trick is to limit that discrimination as best as we humanly can.  And then, sometimes there is overcompensation and the results may appear unfair to the employer.  In all, hiring employees with criminal convictions can best be viewed like a work in progress.  And like all works in progress, we can expect any number of changes.

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Comment by Sandra McCartt on January 23, 2012 at 2:55am
Comment by Valentino Martinez on January 23, 2012 at 4:06am
Here is a broader statement regarding the EEOC's 2012-2016 New Strategic Plan
HCX / Karen Mattonen
EEOC Releases New Strategic Plan, with an intent to Focus on fighting Systemic Discrimination: The Equal Employm...
Comment by Gordon Basichis on January 23, 2012 at 10:28am

Thanks, Valentino.


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