Employers Should Beware of Blanket Background Check Policies When Hiring According to Fisher & Phillips Attorneys

Dallas, TX, August 24, 2012 --(PR.com)-- Is the Equal Employment Opportunity Commission’s guidance on the use – or non-use – of background checks in the hiring process the new version of Don’t Ask, Don’t Tell?

The EEOC now recommends that employers completely avoid asking any questions about criminal convictions on job applications. According to Paul Lanagan of the Dallas office of Fisher & Phillips, a national labor and employment law firm, the EEOC’s position puts every employer in an impossible Catch-22: run the background check and risk a potential discrimination lawsuit or forego this procedure and risk exposing the company to potential liability for negligent hiring or liability based on other tort theories.

“The agency bases its argument on statistics that tend to show people of certain races and national origins are disproportionately arrested and convicted of crimes,” said Lanagan. “Therefore, blanket policies against hiring anyone with a criminal background, without consideration of the specific circumstances involved, runs afoul of Title VII, according to the EEOC.”

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based upon race, color, religion, sex and national origin and is the most widely-applied anti-discrimination statute in the country.

“Employers are well-advised to review their current policies carefully and be prepared to provide the EEOC with specific reasons about why the information uncovered in a background check is ‘job related and consistent with business necessity’ which is the standard for defending such a practice,” stated Lanagan. “This process necessarily requires a thorough review of job descriptions.”

So how can employers utilize a hiring process that includes background checks but still complies with Title VII? The new guidance from the EEOC has left many important questions unanswered, such as:

Can criminal history be requested on a job application?

Employers should only inquire about convictions that are job related and consistent with business necessity. It’s important to also include language that states that a conviction will not necessarily preclude employment.

When should criminal background checks be used?

The EEOC recommends that employers eliminate criminal background checks altogether. However, one approach to impact the least number of applicants, and therefore limit the risk of liability, is to make an offer of employment to the final candidate contingent on successful completion of a criminal background check.

· Can an applicant be excluded based solely on an arrest?

The EEOC guidance is clear that exclusion based solely on an arrest record leaves employers open to claims about violation of the anti-discrimination statute. Employers who are concerned about pending arrests should conduct an independent investigation. If the investigation shows that an arrest is job related and exclusion is consistent with business necessity, refusal to hire is likely justifiable.

“As the EEOC intends to increase enforcement of systemic discrimination in the next few years, it would behoove employers to review and revise their background check policies to ensure they are consistent with the EEOC guidance, but still protect the company from other potential legal liability for failing altogether to perform a check,” said Lanagan.

About Fisher & Phillips LLP (www.laborlawyers.com)
Fisher & Phillips LLP represents employers nationally in labor, employment, civil rights, employee benefits and immigration matters. The firm has more than 275 attorneys in 27 offices. Founded in 1943, it is one of the largest U.S. law firms to concentrate its practice exclusively upon representation of employers in labor and employment matters. In addition to the Dallas office, the firm has offices in Atlanta, Boston, Charlotte, Chicago, Cleveland, Columbia, Denver, Fort Lauderdale, Houston, Irvine, Kansas City, Las Vegas, Los Angeles, Louisville, Memphis, New England, New Jersey, New Orleans, Orlando, Philadelphia, Phoenix, Portland, San Diego, San Francisco, Tampa, and Washington, D.C.

Fisher & Phillips LLP Dallas
Denise Hodges