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Supporting Fair Hiring: Why GoodHire Excludes Non-Convictions From Background Check Results

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Omitting arrest records that did not result in convictions from criminal background check results benefits both employers and job candidates. But not all consumer reporting agencies (CRAs) follow this approach.

Keep reading to find out why GoodHire excludes non-convictions, how doing so helps employers and job candidates alike, and how we’re committed to fair hiring practices.

GoodHire’s Decision to Exclude Non-Convictions

In 2015 we began excluding non-convictions based on guidance that the Equal Opportunity Employment Commission (EEOC) issued for employers. This guidance states that if employers consider arrest records during the hiring process, this can lead to unintentional discrimination, also known as disparate impact discrimination, under Title VII. Background screening practices that violate Title VII discrimination laws can lead to class-action lawsuits. 

There are several reasons why it makes sense to omit non-convictions from background check results:

  • An arrest doesn’t prove a crime was committed. Criminal charges may be dropped or dismissed. Even if the candidate was prosecuted, they may have been acquitted. An arrest record alone does not tell the full story of a candidate’s interaction with law enforcement.
  • Some states have laws prohibiting the use of arrests that did not result in convictions in employment screenings. (Learn more about state background check laws.)
  • Considering arrest records disparately impacts groups that are protected by Title VII of the Civil Rights Act, because certain racial groups are arrested at disproportionate rates compared to white Americans. 

Rest assured, GoodHire still reports pending criminal cases and convictions that are legally reportable under federal and state laws. 

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How Omitting Non-Convictions Benefits Employers and Candidates

Excluding non-convictions from GoodHire background check results has multiple benefits both for you and for job candidates. 

Removing non-convictions from background screening results:

Helps to eliminate unconscious bias and support fair-chance hiring. One in three US adults has been arrested by age 23, according to The Sentencing Project. These candidates face disadvantages in the job market that can make it difficult for them to support themselves and their families, even if they were never convicted of a crime. Seeing a non-conviction can negatively affect your opinion of a candidate even without your conscious awareness. Called unconscious bias, these subconscious attitudes affect the way we view others, and can result in underrepresented groups who are arrested at disproportionate rates, such as Black or Hispanic candidates, being screened out of consideration. 

Can broaden the pool of candidates for your company, which is especially important during the current labor shortage. It can also help you build a more diverse and inclusive workforce. Ethnically and culturally diverse companies have been shown to outperform less diverse companies when it comes to profitability. Excluding non-convictions from screening results supports efforts to level the playing field for candidates who have had interactions with the criminal justice system. 

Helps protect your business from potential legal liability. Although the number of cases filed by the EEOC declined in 2020, the percentage of cases resolved in favor of the plaintiff increased, and the EEOC recovered a record-setting amount from employers. One of the EEOC’s current priorities is eliminating recruiting and hiring practices, including screening tools, that disproportionately impact workers based on their protected status. 

Helps employers comply with state laws as well as local ban-the-box laws. States that prohibit employers from considering arrest records that do not lead to conviction in their hiring decisions include: California, New York, Pennsylvania, Illinois, Louisiana, New Mexico, and Washington D.C.

The Right Thing to Do

In recent years, awareness of racial injustice has grown. Media attention to the phenomenon of mass incarceration, the murder of George Floyd and many other Black Americans, and the rise of the Black Lives Matter movement led to nationwide social justice demonstrations in 2020. In response to widespread demand for change, more employers are making inclusiveness a priority. 

In addition to excluding arrest records from background screening results, GoodHire has taken other steps to help you follow EEOC guidance and to support your company’s fair hiring policies. First, we provide a transparent screening process—our platform automatically provides candidates access to their background check results at the same time as employers to give candidates the opportunity to review their results and to know what information employers are considering during the background screening process. 

GoodHire also helps you follow EEOC recommendations to consider the circumstances and context of a candidate’s criminal record by getting more information and explanation from the candidate and performing an individualized assessment. GoodHire’s Comments for Context feature makes it easy for employers to ask candidates for additional context around an alert on their criminal background check, such as a more detailed explanation of the circumstances of the offense and any evidence of rehabilitation since then. Candidates can also choose to add comments to their report at any time. This feature gives you a fuller picture of the candidate’s experience so you can conduct an individualized assessment of their screening results, in accordance with EEOC guidance.  

At GoodHire, we’re always thinking of new ways to empower both employers and candidates. Supporting fair hiring best practices is the right thing to do; choosing the right background screening provider can help. 

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The resources provided here are for educational purposes only and do not constitute legal advice. We advise you to consult your own counsel if you have legal questions related to your specific practices and compliance with applicable laws.

About the Author

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Elizabeth McLean is GoodHire’s General Counsel, an FCRA-compliance attorney and expert in the background screening legal landscape. She monitors all things FCRA and EEOC. That means she follows new legislation and court decisions and advises the company on processes that follow compliance best practices.

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