The Cracks in the EEOC’s Guidance for Use of Criminal Background Checks

In recent months, the EEOC has been unsuccessful in its attempts to have a judge levy fines against companies for discrimination from the use of background checks.  Just a few weeks ago, a U.S. District Court Judge berated the EEOC for bringing a suit against a company by stating that the company had rejected job applicants based on credit history, and if they had one or more of various types of criminal charges or convictions.  The judge questioned the statistical data presented by the EEOC as well as stating that the lawsuit presented was mostly theory, with very little facts to back it up.

In the judge’s ruling, he noted that even the EEOC utilizes criminal background checks as a condition of employment, and also utilizes credit checks on at least 90% of its positions.  While they may be following their own guidance, they do utilize the same methods that thousands of companies utilize by conducting an employment screening on potential employees which includes the aforementioned type of information. 

By the EEOC’s continued push to identify companies that are not using background checks appropriately, they are essentially putting companies in a tenuous situation of choosing one way or the other.  A company must either ignore criminal background and credit history which then exposes them to potential criminal or fraudulent acts committed by employees, or incur the wrath of the EEOC by utilizing information which in fact is fundamental in making the appropriate choice for a hire. 

The bottom line is that the reasons for conducting an employment screening are obvious.  Employers need a clear reason to NOT make a hire, and if a background history shows the type of behavior that proves to be detrimental to the company and the long term success of the applicant, then they need to be able to act accordingly.  The EEOC has begun to show that, based on their lack of evidence in the case noted above, that their desire to target companies that are utilizing background checks incorrectly based on their guidance has some definite cracks.   A company needs to be able to examine an applicant’s background, and the most effective way to do that is through an employment screening that includes a criminal background check.  The EEOC may look to find fault in the use of this information, however, a company must do what it needs to make sure they are hiring the most appropriate person.