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Denver employers: New EEOC guidance on background checks - Part 2

This week's post is a continuation from last week on the EEOC's latest guidance document outlining when employers should request arrest records from employees and applicants, and how employers should use criminal background checks in their employment and hiring practices. Some surveys have shown that nine out of 10 employers are in the practice of subjecting all or some of their employment applicants to a criminal background check.

The important thing to note here, is although Title VII does not specifically prohibit a business from requesting this information from employees or applicants, it does prohibit employers from using national origin, color, race, religion or sex to discriminate against an employee or potential employee in hiring decisions. This new guidance is designed to not only help EEO investigators uncover discriminatory hiring practices, but to guide employers with adherence to federal employment discrimination laws.

A criminal background check can be an effective tool in keeping other employees and clients safe, as well as eliminating employee theft and fraud, among other benefits. However, the EEOC contends that a criminal background check has the potential to discriminate against minority applicants in the hiring process. Here are some tips for employers on how to avoid liability for a Title VII violation.

If you do find that a potential employee has been convicted of a crime, conduct an "individualized assessment" that considers the following:

  • The number of years that has passed since the offense and/or sentence was served
  • The nature and gravity of the offense or behavior
  • The nature of the job you are considering the applicant for

The EEOC's latest guidance document also offers best practices for employers who use criminal histories when considering hiring or other employment decisions, such as changing job responsibilities, promotions and the like. The report states this is a good time to review how your business uses criminal background checks in your hiring and employment practices to ensure compliance with state and federal laws.

If you are unsure what your options are, an attorney experienced in employment law and litigation can be a great resource for limiting your liability or defending against a claim of employment discrimination.

Source: Business Management Daily, "EEOC urges caution on criminal background checks," May 4, 2012

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