By its very nature, something called guidance should offer just that – guidance. But some small business owners are claiming that the Equal Employment Opportunity Commission’s ‘guidance’ on background checks is too confusing to follow.

The issue stems from a 55-page, 167-footnoted explanation to Title VII of the Civil Rights Act of 1964. In this article from The Business Journals, Todd McCracken, president of the National Small Business Association, says the EEOC’s guidance is so complicated and confusing that it discourages small businesses from relying on criminal background checks.

The debate started after some groups, the NAACP among them, claimed the practice of using criminal background checks disproportionately affected minorities chances of getting jobs since minorities are convicted of crimes at higher rates than non-minorities. Called disparate impact, it exists when an employer has a policy or practice that has a discriminatory effect on theses protected classes:

  • race, sex, religion, genetic information, disability, color, national origin, citizenship, age, pregnancy
  • some states also offer protection for sexual orientation, weight, marital status

However, disparate impact is a theory based on statistical analysis. Someone can be accused of disparate impact even if they had no intention of mistreating minorities or other protected classes. Perhaps, a more telling measurement of discriminatory practices is disparate treatment, where an employer intentionally treats someone different and they’re considered a protected class. Just last month, the U.S. Supreme Court agreed to take up a challenge to the disparate impact theory.

We explored disparate impact, disparate treatment and other situations that lean toward discrimination in this post. It’s a great resource for basic information about what discrimination can look or feel like in a workplace.

When the EEOC issued the guidance in 2012, it was trying to ensure employers didn’t reject candidates solely because of criminal convictions. The NAACP for one claimed that other factors should be considered:

  • type and gravity of the offense
  • amount of time passed since the conviction
  • nature of the work the applicant would be doing

Victim advocates, obviously, take a different stance and push for criminal background checks to remain an important part of the screening process. They claim the EEOC was overzealous in trying to protect people from employment discrimination and that background checks have been ‘demonized’ to the point where employers are afraid to use them and are therefore risking the safety of the current workforce and clients.

Active Screening understands the arguments about guidance. We know how confusing hiring can be and we’re here to help you navigate the screening process so you can feel confident that you’ve done your best to securely and safely bring on a new employee.

We believe that workplace safety is a high priority for all businesses. We believe that criminal background checks are an important piece to thoroughly vetting any candidate. We believe that other screening processes like substance abuse testing, credit verification and driving records should also be available to employers. We believe that you have your employees and applicants best interests at heart.

Our Director of Compliance and our Criminal Research Manager both have more than 15 years in the employment screening industry so bring your questions about guidance directly to one of them. Give us a call today 1-800-319-5580.


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