On April 25, the Equal Employment Opportunity Commission (EEOC) updated its guidance on criminal background screening and avoiding disparate impact on protected groups.

As we reported in February, Nextep highly recommends the use of background screening when hiring new employees. When denying employment to someone based on his or her criminal history, however, companies must be careful that it is not creating disparate impact that could potentially violate the protection afforded under Title VII, which prohibits discrimination based on race, religion, gender, and national origin. When denying employment based on a criminal history, the employer must be able to show how the criminal history would have impacted the job at hand.

The EEOC provides suggested Best Practices companies can use when using criminal background searches to help make employment decisions:

Don't use an overly broad background screening policy in which people with criminal backgrounds are automatically eliminated.

• Consider each job individually.
• Create job descriptions, listing specific job duties and circumstances under which those duties are performed.
• List specific criminal offenses that may make an applicant unfit to perform the job.
• Determine how long a criminal offense should cause a person to be unfit for the job at hand and why. Except in extreme cases, criminal records older than 7 years should generally not be considered.
• Have a written record of your justifications, consultations, and research involved in making the decision.
• When asking about a criminal record, limit questions to how it would impact the job.
• Keep criminal information confidential.

Train all leaders in the organization on Title VII.

• Managers, supervisors, hiring officials, and others in leadership positions should be trained on how to make employment decisions that are compliant with Title VII.
• Leaders should also be aware of disparate impact and ensure that employment decisions are not negatively impacting a protected group of people, whether the impact is intentional or not.

When background screening results show a criminal history, Nextep's HR Department consults with the client on a recommended course of action. For questions regarding the EEOC guidance or developing criteria for positions in your company, please contact Nextep's HR Department.

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