SHRM Issues Statement on Updated EEOC Enforcement Guidance for Criminal Background Checks

The Society for Human Resource Management (SHRM) — the world’s largest human resources association representing more than 250,000 members in over 140 countries — has issued a statement on the updated Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 issued by the U.S. Equal Employment Opportunity Commission (EEOC) on April 25, 2012. The updated Enforcement Guidance from the EEOC, the agency that enforces federal laws prohibiting employment discrimination, is available at http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm.

The statement from SHRM on the EEOC’s updated Enforcement Guidance reads as follows:

SHRM considers criminal background checks an appropriate tool to help employers make informed hiring decisions while ensuring the safety and well-being of their employees and customers.

We appreciate the bipartisan nature in which the guidance was developed. SHRM recognizes that the EEOC held hearings and met with stakeholder groups on the use of criminal background checks in hiring, but we continue to believe that a public comment period should have been part of the development of the guidance.

SHRM is pleased that the guidance does not appear to impose a one-size-fits-all set of rules on employers and seems to take into consideration that every employer will have different needs and concerns in the use of criminal background checks in hiring.

We look forward to reading the guidance in its entirety. However, SHRM remains concerned with the potential conflict between this federal guidance and state laws that require criminal background checks in some industries and for some positions. We will continue to work with the commission to address issues related to the use of criminal background checks in hiring.

SHRM has conducted national research that shows a majority of employers are thoughtful in the hiring process and follow practices consistent with law designed to prevent discrimination in hiring. SHRM research in 2006 and 2010 does not show an increase in the use of background criminal checks.

Along with the statement from SHRM, the National Association of Professional Background Screeners (NAPBS®) — a non-profit trade association representing more than 700 member companies worldwide that offer background screening — also issued a response to the updated Enforcement Guidance from the EEOC.

Before the EEOC meeting on April 25, 2012 where the Commission voted 4-1 to approve the Enforcement Guidance document, in a letter dated April 18 regarding ‘Pending EEOC Guidance on Criminal Background Checks,’ a broad coalition of associations – including SHRM, the NAPBS, and the U.S. Chamber of Commerce – wrote to the EEOC to express “concerns over any forthcoming changes to the long-standing and appropriate EEOC guidance that would impede the ability of employers to continue to use criminal background checks to make informed hiring decisions.”

On an EEOC Questions and Answers (Q & A) page at http://www.eeoc.gov/laws/guidance/qa_arrest_conviction.cfm, the question of how the EEOC’s updated Enforcement Guidance differs from earlier policy statements is answered:

  • The Enforcement Guidance discusses disparate treatment analysis and gives examples of applicants with the same qualifications and criminal records being treated differently because of race or national origin in violation of Title VII.
  • The Enforcement Guidance explains the legal origin of disparate impact analysis.
  • The Enforcement Guidance explains two circumstances where employers may consistently meet the “job related and consistent with business necessity” defense: 1.) The employer validates the criminal conduct exclusion for the position in question in light of the Uniform Guidelines on Employee Selection Procedures; or 2.) The employer develops a targeted screen considering the nature of the crime, the time elapsed, and the nature of the job, then provides an individualized assessment to determine if the policy is job related and consistent with business necessity.
  • The Enforcement Guidance states that federal laws and regulations that restrict or prohibit employing individuals with certain criminal records provide a defense to a Title VII claim.
  • The Enforcement Guidance says state and local laws or regulations are preempted by Title VII if they “require or permit the doing of any act which would be an unlawful employment practice” under Title VII.

The Enforcement Guidance also recommends “best practices” for employers using criminal records:

  • Eliminate policies or practices excluding people from employment based on any criminal record.
  • Train managers, hiring officials, and decision makers about Title VII and its prohibitions on employment discrimination.
  • Develop a narrowly tailored written policy and procedures for screening criminal records.
  • Determine specific offenses that may demonstrate unfitness for performing such jobs.
  • Determine the duration of exclusions for criminal conduct based on all available evidence and include an individualized assessment.
  • Record the justification for the policy and procedures.
  • Note and keep a record of consultants and decision makers on how to implement the policy and procedures consistent with Title VII.
  • Limit inquiries about criminal records to records for which exclusion would be job related for the position in question and consistent with business necessity.
  • Keep information about criminal records confidential and only use for the purpose intended.

The materials for the EEOC public meeting of April 25, 2012 on Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act of 1964, including testimony and transcripts, are available at http://www.eeoc.gov/eeoc/meetings/4-25-12/index.cfm.

The EEOC will hold open the April 25 Commission meeting record for 15 days, and invites members of the public to submit written comments on any issues or matters discussed at the meeting. Public comments may be mailed to Commission Meeting, EEOC Executive Officer, 131 M Street, N.E., Washington, D.C. 20507, or emailed to Commissionmeetingcomments@eeoc.gov.

To keep employers informed about the updated EEOC Enforcement Guidance, Employment Screening Resources (ESR) will offer updates in the ESR News blog and will soon be scheduling a webinar on the subject. For more information, visit Employment Screening Resources (ESR) – ‘The Background Check Authority’ and nationwide background screening firm accredited by the National Association of Professional Background Screeners (NAPBS) – at http://www.ESRcheck.com.

Related ESR News Blogs:

Sources:

http://www.shrm.org/about/pressroom/PressReleases/Pages/BackgroundCheckGuidance.aspx http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm http://www.eeoc.gov/laws/guidance/qa_arrest_conviction.cfm http://www.eeoc.gov/eeoc/meetings/4-25-12/index.cfm http://www.esrcheck.com/file/IndustrySignOnLetterToEEOC_CriminalRecords_4_18_12.PDF http://www.esrcheck.com/wordpress/2012/04/26/napbs-responds-to-eeoc-enforcement-guidance-on-use-of-criminal-background-checks-by-employers/

About Employment Screening Resources (ESR):

Employment Screening Resources (ESR) – ‘The Background Check AuthoritySM’– provides accurate and actionable information, empowering employers to make informed safe hiring decisions for the benefit for our clients, their employees, and the public. ESR literally wrote the book on background screening with “The Safe Hiring Manual” by Founder and CEO Lester Rosen. ESR is accredited by The National Association of Professional Background Screeners (NAPBS), a distinction held by a small percentage of screening firms. By choosing an accredited screening firm like ESR, employers know they have selected an agency that meets the highest industry standards. For more information about Employment Screening Resources (ESR), visit http://www.esrcheck.com/ or call 415.898.0044 or 888.999.4474.

About ESR News:

The Employment Screening Resources (ESR) News blog – ESR News – provides employment screening information for employers, recruiters, and jobseekers on a variety of topics including credit reports, criminal records, data privacy, discrimination, E-Verify, jobs reports, legal updates, negligent hiring, workplace violence, and use of search engines and social network sites for background checks. For more information about ESR News or to send comments or questions, please email ESR News Editor Thomas Ahearn at tahearn@esrcheck.com.