New EEOC Guidelines Reinforce Idea that Maintaining a Rejectionable Offense List is a Hiring Best Practice

Having a list of rejectionable offenses is a simple way for employers to maintain consistent screening practices in order to minimize opportunities for discrimination lawsuits. Recently, the U.S. Equal Employment Opportunity Commission (EEOC) released new guidelines dictating the manner in which criminal history reports may be used during a pre-employment assessment process. These new guidelines state:

“This Enforcement Guidance is issued as part of the Commission’s efforts to eliminate unlawful discrimination in employment screening, for hiring or retention, by entities covered by Title VII, including private employers as well as federal, state, and local governments.”

But criminal background checks have become a crucial part of the pre-screening process in order to prevent violence in the workplace. Indeed, the EEOC goes on to state:

“In one survey, a total of 92% of responding employers stated that they subjected all or some of their job candidates to criminal background checks. Employers have reported that their use of criminal history information is related to ongoing efforts to combat theft and fraud, as well as heightened concerns about workplace violence and potential liability for negligent hiring. Employers also cite federal laws as well as state and local laws as reasons for using criminal background checks.”

However, the use of criminal background checks as part of the hiring process should be used with caution since acting inappropriately can lead to expensive litigation. Several best practices offered by the EEOC include:

• Eliminating policies that use a criminal record to exclude people from employment.

• Determine specific offenses that may signify lack of fitness for a job.

• Record a justification for the policies.

• Limit criminal records questions to inquiries regarding job-related issues only.

• Keep all criminal record information confidential.

Additionally, including a rejectionable offense list that outlines illegal acts that automatically exclude an applicant from the job pool can make it much easier for hiring managers to reject candidates for specific positions while remaining compliant with state and federal anti-discrimination laws.