With the “Ban the Box” movement continuing to gain momentum, we will be publishing a series of articles that provides solid guidance for companies trying to navigate the current, confusing recommendations for safely and effectively conducting application evaluation and candidate screening/hiring. To get started, here’s a run-down of the 2012 Equal Employment Opportunity Commission (EEOC) guidance regarding background screens.
First, it’s important to note that the EEOC does not prohibit background screens. Title VII of the Civil Rights Act of 1964, which the EEOC administers, permits employment tests and screens as long as they are not “designed, intended or used to discriminate because of race, color, religion, sex or national origin.” In a Fact Sheet on Employment Tests and Selection Procedures, it lists the following examples, which we have abbreviated here due to space considerations:
- Cognitive tests;
- Physical ability tests;
- Sample job tasks;
- Medical inquiries and physical examinations;
- Personality tests and integrity tests;
- Criminal background checks;
- Credit checks;
- Performance appraisals;
- English proficiency tests.
If a selection procedure has a disparate impact based on race, color, religion, sex or national origin, the employer must be able to show that the selection procedure is job-related and consistent with business necessity. Due to demographic shifts, minorities compose a disproportionate number of individuals with criminal histories. Therefore, hiring companies must be especially careful when conducting background screens that involve criminal records in order not to run afoul of Title VII.
EEOC Best Practices for Testing and Selection
- Employers should administer tests and other selection procedures without regard to race, color, national origin, sex, religion, age (40 or older), or disability.
- Employers should ensure that employment tests and other selection procedures are properly validated for the positions and purposes for which they are used. The test or selection procedure must be job-related and its results appropriate for the employer’s purpose.
- If a selection procedure screens out a protected group, the employer should determine whether there is an equally effective alternative selection procedure that has less adverse impact and, if so, adopt the alternative procedure.
- Employers should keep abreast of changes in job requirements and should update the test specifications or selection procedures accordingly.
- Employers should ensure that tests and selection procedures are not adopted casually by managers who know little about these processes.
In addition, per when an organization runs background checks through a company in the business of compiling background information, it must comply with the Fair Credit Reporting Act (FCRA).
A few more helpful caveats from guidance issued jointly by the EEOC and the Federal Trade Commission (FTC) follow. These are EEOC items, only. We will save the FTC guidance for another discussion.
- Don’t ask any medical questions before a conditional job offer has been made.
- Any background information from any source must not be used to discriminate in violation of federal law. For example, if you don’t reject applicants of one ethnicity with certain financial histories or criminal records, you can’t reject applicants of other ethnicities because they have the same or similar financial histories or criminal records.
- Take special care when basing employment decisions on background problems that may be more common among people of a certain race, color, national origin, sex, or religion; among people who have a disability; or among people age 40 or older.
- Be prepared to make exceptions for problems revealed during a background check that were caused by a disability.
For more information about the EEOC and other hiring guidelines and legislation, or to discuss an evaluation of your company’s current screening processes, we invite you to give us a call at (765) 932-5917.