FOLLOW-UP: COURT CHECKS SHOULD
RELATE TO JOB TO BE FILLED
Of late, there has been a fair amount of confusion about how court checks can be used in the hiring process. Recent guidelines by the Equal Employment Opportunity Commission recommend eliminating hiring policies that, “exclude people based on a criminal record.”* In a nutshell, the EEOC is making the point that it’s unfair to eliminate every candidate from consideration for employment simply because the individual has a criminal conviction that may have nothing to do with the requirements of the job itself. Part of the concern stems from the fact that minority populations have been convicted of crimes at a higher rate, and thus there is a more significant impact on the ability of individuals in those groups to find employment.
Opponents of the EEOC guidelines contend that the only impact will be to cause employers not do criminal history checks at all.
The solution to the problem is for employers simply to make sure that court check results are used as part of a hiring decision only if they relate to the type of job to be filled. For example, if an employer has stated that the maintenance of a safe work environment for its employees is one of its policies, then it’s perfectly acceptable to deny employment to anyone with a history of convictions for workplace violence. On the other hand, it probably is not acceptable to deny employment to a candidate who has been convicted, for example, of failure to pay child support. Employers can clearly conduct criminal background checks, but the denial of employment can be based only on a direct and documentable correlation between the requirements of the job and the nature of the criminal conviction. Stated another way, the owner of a pre-school can clearly deny employment to a convicted sex-offender. The same denial of employment would be more difficult to defend if the job for which the candidate is being considered will be a position in which the candidate is working from home! There has to be a connection between the requirements of the job and the nature of the conviction.
To avoid difficulties, employers need to be able to document that all applicants have been treated equally in terms of the impact that a court check had on their hiring practices. Stating clearly that maintaining a safe workplace for all employees is an employer’s policy is obviously a reasonable thing to do. A court check that reveals a history of battery in the workplace is, therefore, a solid basis upon which to deny anyone employment. A moment’s reflection should make clear the common sense underpinning of how best to utilize a court check.
The other point to keep in mind is that EEOC guidelines are not the same as “black-letter law.” A guideline is not the same, in other words, as a law, passed by Congress or a state legislature.