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Major Cities Are Banning Criminal Background Checks

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The best way to achieve a truly unbiased hiring process is to ensure that every applicant is given the same opportunity to get the job. If any personal information about an applicant (e.g. age, sexual orientation, race) effects his or her fate in the screening process, then the hiring process cannot be considered unbiased. There are a few reasons why an impartial candidate selection process is essential. First, and most notoriously, failing to screen applicants in a way that complies with EEOC and federal hiring regulations can lead to legal repercussions for the company and the offending hiring manager or managers.

Besides the fact that it is the law, the candidate-driven marketplace has made an equitable hiring process essential for maintaining positive candidate perceptions of your organization. Introducing bias into any selection process will skew your results, meaning that the best fit candidate for the job may be eliminated unnecessarily. Today’s blog will discuss an emerging trend of city and state government agencies banning criminal background checks on the grounds that they negatively impact the chances of past offenders of being considered for the job, let alone hired.

Though the criminal background check has, for many employers, become as standard a hiring practice as checking a candidate’s references, major cities are starting to ban the use of this tool on discriminatory grounds. They’re calling this reformatory movement “Ban-the-Box,” as in the box next to questions like, “have you ever been convicted of a crime?” While it’s pretty understandable for a trucking company to want to know if a driver has ever gotten a DUI, criminal background checks conducted for particular roles have the potential to automatically screen out candidates who may be a great fit for your company, despite their troubled past.

According to an article from ERE.net, “Ban-the Box” legislation is sweeping the nation, with new laws being enacted in: Baltimore, Philadelphia, Seattle, Buffalo, San Francisco and, most recently, Washington, D.C. As you can see, some of the early adopters of this law are some of the largest job centers in the country, which signals how much momentum this movement already has developed. While criminal background checks may be practical for your business, you should accept the possibility that this hiring practice may be phasing out and that there could be a new generation of “ban-the-box” litigation leveled against employers across the country.

Given the prevalence of these new hiring guidelines, there are some things that your company should consider about your own criminal background check policy.

Is your criminal background check consistently applied to all applicants?

Though having a criminal record does not necessarily place a candidate into an EEOC protected class as his or her age or race might, these criminal screening practices must be applied carefully and equally in order to ensure compliance. Asking for background checks on an inconsistent or subjective basis can easily be grounds for a discrimination lawsuit. Here is what the EEOC has to say about what qualifies discriminatory screening practices:

  • “It’s illegal to check the background of applicants and employees when that decision is based on a person’s race, national origin, color, sex,” … “For example, asking only people of a certain race about their financial histories or criminal records is evidence of discrimination.”

If a company uses background check on any sort of subjective basis, there is a much greater potential for discrimination (unintentional and otherwise) and a lack of compliance with federal guidelines. Though a hiring manager may not be aware of requesting background information from one demographic more often than others, this statistical discrepancy can easily be turned into a discrimination case.

Are there any demographics in your candidate pool that are being discriminated against by a criminal background check?

Depending on where your company operates, it is possible for your company’s criminal check to be inherently discriminatory. When a higher proportion of protected class candidates have a criminal record, the EEOC considers the policy discriminatory:

  • “Employers should not use a policy or practice that excludes people with certain criminal records if the policy or practice significantly disadvantages individuals of a particular race, national origin, or another protected characteristic, and does not accurately predict who will be a responsible, reliable, or safe employee. In legal terms, the policy or practice has a “disparate impact” and is not “job related and consistent with business necessity.”

Given the fact that nearly 1 in 3 Americans have a criminal history, it is quite possible for a criminal screening policy to be inherently discriminatory. If a higher proportion of any protected demographic in your candidate pool is disadvantaged by this policy, then you may want to consider becoming an early adopter of “Banning the Box”. Failing to comply with EEOC guidelines can open your company up to lawsuits and severely damage your reputation with job seekers. People prefer not to work for companies with a history of discrimination and, in today’s candidate driven job market, a poor reputation can make recruiting top talent more difficult.

Evaluating What’s Right for Your Company

Until the “Ban-the-Box” goes national, the biggest consideration as to whether your company should continue using criminal background checks is whether or not it’s right for your company. For instance:

  • Are background checks related to the hiring needs of your organization?
  • Are there roles that you plan to hire for that require candidates to have a clean record?
  • Are you conducting background checks because it is what you’ve always done, or because you’ve seen positive results from the policy?

In terms of compliance, you should make sure that your screening process meets these requirements, as well as all of the screening guidelines put forth by the EEOC:

  • Are your background checks part of the application process for all candidates?
  • Are you getting explicit, written permission from candidates to conduct these background checks?
  • Does your background check screen out higher percentages of protected class candidates?

Whatever action you decide to take, the most important thing to do is take the time to evaluate whether or not conducting criminal background checks is benefiting your company. If some of your open positions necessitate a clean criminal record, and the screening process is applied equally and does not inherently discriminate against a protected class, then a criminal screen is still useful. On the other hand: if the job does not necessitate an impeccable record/reputation, or if the screening practices do not follow the letter of the law, then you could be opening yourself up to a world of legal woes. The bottom line: criminal background checks may not be critical for every business, so employers should evaluate the necessity and efficacy of their screening policies in order to provide a fair application process now, and in the future.

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