Equal Employment Opportunity Commission Changes Rules Regarding Background Checks

The EEOC has found blanket hiring policies, which automatically reject candidates who have a previous criminal record, illegal due to the disproportionate impact the policies have on minority populations. The new guidelines released by the EEOC addressing background checks comes as a direct reaction to a settlement between the Commission and Pepsi Co. where the company agreed to a $3.13 million penalty after an official investigation found that Pepsi’s background check policy discriminated against minorities.

The guidelines stipulate three criteria for which employers must abide when making hiring decisions for applicants with criminal histories. The criteria include: the nature and severity of the offense, the time that has elapsed since the offense occurred, and the nature of the specific position being sought.

However, the addition of a new recommendation requesting extensive individual assessments for each applicant could me a substantial increase in workload for HR. The EEOC suggests the following list of considerations when approaching these individual assessments:

• The circumstances surrounding the offense
• The number of convicted offenses for each individual
• The age of the applicant at the time of conviction or prison release
• Similar work that an individual has performed, post conviction, without criminal incidents
• Length and consistency of employment history both prior to conviction and after release
• The effects of any rehabilitation efforts
• Professional and personal references
• Whether the applicant is bonded.

One “loophole” to these guidelines is that if an applicant refuses to provide this background information, employers may make a hiring decision based on whatever information is available.