New EEOC Guidance on Criminal Background Checks Could Place Employers in Catch 22 Situation

The new U.S. Equal Employment Opportunity Commission (EEOC) Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 issued on April 25, 2012 could impose undeserved liability and risk on employers by placing them in an irreconcilable “Catch 22” situation where they will have to choose between conducting criminal background checks and risking liability for supposedly violating the EEOC’s Guidance or abandoning background checks and risking liability for criminal conduct by employees, according to a Legal Memorandum from The Heritage Foundation: “The Dangerous Impact of Barring Criminal Background Checks: Congress Needs to Overrule the EEOC’s New Employment ‘Guidelines.’”

The ‘Abstract’ of the Legal Memorandum from The Heritage Foundation – a research and educational institution with a mission to formulate and promote conservative public policies – states:

The EEOC’s new criminal background check “Enforcement Guidance” is potentially unlawful and certainly ill advised. In addition to lowering minority hiring rates and exposing employers to crushing liability, this new Guidance places employers in a vicious “Catch 22” situation: Business owners will have to choose between conducting criminal background checks and risking liability for supposedly violating Title VII or following the EEOC’s Guidance, abandoning background checks, and risking liability for criminal conduct by employees. Furthermore, failing to conduct such background checks places the public at risk, as violent offenders might go for years before lashing out at customers or co-workers. The U.S. House of Representatives and the Senate have already taken some actions to stop enforcement of this Guidance, but more is needed.

In addition, the Legal Memorandum from The Heritage Foundation claims that the EEOC has “placed individual Americans at risk” since the new Guidance “increases the odds that they will be the victims of property crimes and violence.” Also, adding “further injury to insult,” the Memorandum says the new EEOC Guidance will “make it more difficult for racial and ethnic minorities to obtain employment.”

The Memorandum – available at http://www.heritage.org/research/reports/2012/05/the-dangerous-impact-of-barring-criminal-background-checks – also includes the following ‘Talking Points’:

  • The Equal Employment Opportunity Commission’s new Guidance on criminal background checks will lower minority hiring rates and expose employers to crushing liability.
  • This new Guidance places employers in a vicious “Catch 22” situation: Business owners will have to choose between conducting criminal background checks and risking liability for supposedly violating Title VII or following the EEOC’s Guidance, abandoning background checks, and risking liability for criminal conduct by employees.
  • Without any evidentiary foundation, the EEOC assumes that because blacks and Hispanics are arrested and convicted at a higher rate than whites, the consideration of criminal backgrounds has a disparate impact on minorities and is therefore a violation of Title VII.
  • Failing to conduct such background checks places the public at risk, as violent offenders might go for years before lashing out at customers or co-workers.

To help employers comply with the new EEOC Guidance, Attorney Lester Rosen, Founder and CEO of background check firm Employment Screening Resources (ESR), will present a complimentary webinar titled ‘Practical Steps Employers Can Take to Comply with the New EEOC Criminal Guidance’ on Thursday, June 14, 2012 from 11:00 AM to 12:00 PM Pacific Time (2:00 PM to 3:00 PM Eastern). Seats to the webinar, which will provide participants a pathway to EEOC compliance, may be reserved at: https://www2.gotomeeting.com/register/781044434.  Registrants will receive a confirmation email containing information about joining the webinar. A recorded version of the webinar will be made available to all registrants by email the next day.

“This webinar will go beyond merely restating what the EEOC Guidance included and answer the question of what employers should do now to be in compliance,” says Rosen, the author of ‘The Safe Hiring Manual.’ “All employers need an action plan to comply with the new rules of the EOCC on the use of arrest and conviction records. This webinar provides concrete steps employers can take.”

In the webinar, Rosen will offer “real world” solutions on what employers should do now to remain in compliance with the EEOC while performing criminal background checks on job applicants.  Topics covered in the webinar will include:

  • Longstanding court decisions and existing EEOC Guidance documents;
  • Employment discrimination based on race and national origin, criminal records, and employer practices;
  • The differences between arrest and conviction records;
  • Disparate treatment and disparate impact analysis under Title VII;
  • Employer defenses the EEOC believes meet the “job related and consistent with business necessity” standard;
  • Individualized assessment of job applicants with criminal records;
  • Compliance with other federal laws and/or regulations that conflict with Title VII;
  • State and local laws or regulations preempted by Title VII; 
  • EEOC Guidance best practices for employers; and
  • Links to EEOC Guidance materials and Q & A.

The updated EEOC Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 issued on April 25, 2012 is available at http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm.

For more information about background checks, visit Employment Screening Resources (ESR) – ‘The Background Check Authority’ and nationwide background screening company accredited by The National Association of Professional Background Screeners (NAPBS) – at http://www.esrcheck.com/ or call 415.898.0044.

NOTE: For clients of Employment Screening Resources (ESR) who would like a recording of the special ESR ‘Client Only’ EEOC Criminal Guidance webinar held on May 31, 2012, please contact ESR Customer Service at 415.898.0044 or customerservice@esrcheck.com.

Source:
http://www.heritage.org/research/reports/2012/05/the-dangerous-impact-of-barring-criminal-background-checks

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/, call 415.898.0044 or 888.999.4474 (Toll Free), or email customerservice@esrcheck.com.

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.