The EEOC recently published new guidelines for the use of background checks in the selection screening process. According to the EEOC, 92% of employers utilize background checks in their hiring processes. We certainly encourage it for our clients.

Since being a criminal isn’t a protected class under Title VII, why is the EEOC concerned about criminal records? Here’s their rationale:

According to the EEOC, “African Americans and Hispanics are arrested in numbers disproportionate to their representation in the general population. In 2010, 28% of all arrests were of African Americans (1) even though African Americans only comprised approximately 14% of the general population (2). In 2008, Hispanics were arrested for federal drug charges at a rate of approximately three times their proportion of the general population (3). Moreover, African Americans and Hispanics were more likely than Whites to be arrested, convicted, or sentenced for drug offenses even though their rate of drug use is similar to the rate of drug use for Whites (4).

So if you make hiring decisions based on criminal records then you are likely excluding more minority than non-minority candidates. Let’s take an example. If you were considering hiring me as a truck driver, you would probably look at my record. Fortunately I don’t have a criminal record, but I do have a habit of driving a bit faster than I probably should. When I look back at my driving record, I’ve been pulled over five times for speeding. Four times I was given a verbal warning and let go. One of those times, my brother saw it and blackmailed me into washing his car to keep him from telling our parents. But that’s another story.

There was only one time that I received a ticket. The officer pulled me over for speeding through town with the windows down, radio blaring, and enough lumber sticking out of the back of my car to build a new porch railing. Certainly I deserved that ticket, however, if I were a minority, would I have had more? The EEOC is betting that I would.

Since employers can be held liable for negligent hiring claims if they hire a candidate who later crashes the truck and hurts someone, what’s an employer to do?

Here are some steps you can take to hire the right people while protecting your company as well as your employees, customers, and the general public:

• Don’t do this yourself. Use a qualified service such as the Orsus Group to conduct your background checks. There’s a lot of inaccurate information available on the internet. Make certain you have good data. (The DOJ reports that only 50% of FBI cases include the final disposition).

• Only ask about convictions, not arrests.

• Allow candidates an opportunity to respond if they are disqualified based on a conviction record. There may be more to the story. (Utilize the FCRA process for this).

• Consider past criminal histories on a case by case basis. Is the crime relevant to the type of work being performed? Was it a long time ago without any reoccurrence?

• Be consistent by disqualifying candidates with similar records from consideration for the same jobs regardless of their protected status.

Whatever you do, make certain that you are making your hiring decisions based on accurate information that is relevant to the job. Oh, and watch your speed. I know there’s at least one officer who is…

(1) Unif. Crime Reporting Program, Fed. Bureau of Investigation, Crime in the U.S. 2010, at Table 43a (2011), http://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2010/crime-in-the-u.s.-2010/tables/table-43/10tbl43a.xls

(2) U.S. Census Bureau, The Black Population: 2010, at 3 (2011), http://www.census.gov/prod/cen2010/briefs/c2010br-06.pdf

(3) See Nancy E. Walker et al., Nat’l Council of La Raza, Lost Opportunities: The Reality of Latinos in the U.S. Criminal Justice System 17″”18 (2004), http://www.policyarchive.org/handle/10207/bitstreams/20279.pdf

(4) See, e.g., Human Rights Watch, Decades of Disparity: Drug Arrests and Race in the United States 1 (2009), http://www.hrw.org/sites/default/files/reports/us0309web_1.pdf

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