Background checks are necessary to keep the workplace safe and to protect the good workers from the bad ones. But the checking is fraught with risks and the Equal Employment Opportunity Commission cautioned businesses: Conduct criminal background checks at your own risk.
If companies ask job applicants about their criminal histories they could face discrimination lawsuits. John Hendrickson, the regional attorney for the EEOC’s Chicago district said, “I would suggest to (businesses) that they think long and hard about why they think they need to do a criminal background check,” insinuating that if they felt it was not required, they’d be safer not doing it.
Guidelines issued by the EEOC in April clearly state that people cannot be denied employment, just because they have a record of criminality. The EEOC has such stringent rules for such checkups, but does not outright ban them. However, the rules are enough to scare the employer from basing his employment on the background checks alone.
The EEOC has advised employers to take three things into account before rushing into judgment. When was the crime committed, in what circumstances, will it impact the job that the candidate is seeking are questions that the EEOC demands that employers consider.
Most importantly the, EEOC asks employers to give candidate’s with a criminal background an opportunity to expalin their past misconduct and talk about their conviction and what it has done to them.
Jeff Nowak, a Chicago labor and employment attorney, “Employers should record and document the justification for their employment decisions when they are making the decision with someone with a criminal history.”
Of course for all that EEOC may say about these people deserving a second chance and that it behooves for civil society to contribute to their rehabilitation efforts, there are some sensible reasons why it may be more prudent not to hire people with criminal records.
If a job-applicant had been charged with misappropriation of funds, surely any employer would be reluctant to employ him in a financial capacity. The vexing question however, is that would denying him a job in some other capacity that does not require dealing with money, be in violation of EEOC rules?
To make employers more wary and on the alert is that companies have ended up paying penalties, when it was proved that people were denied work owing to their past convictions. At the beginning of this year Pepsi ended up paying $3.13 million to black applicants, who proved that the soft-drink company denied them work because of their past arrests.
The employers are being forced to choose between denying people work they consider unsafe, owing to their past criminal conduct and risk being taken to court by the EEOC, or allow them to work and worry about whether the person will not pose a danger to other workers or the employers clients.
Many businesses are opting out of criminal background checks; others are being selective and doing it for some positions and not for other positions at the workplace. Some say that they use their intuition to judge an applicant, whilst some say that unless the man is guilty of serious misdemeanor like theft, sexual or physical assault, it may perhaps be safe to employ him or her.
An attorney said that the EEOC rules could make the workplace unsafe for other workers and advises employers not to stop conducting background checks. Moreover, they should not respond to workers who have been denied work to avoid charges of discrimination.