GoodHire recently decided to omit non-convictions from background reports. This simple decision lets us help our customers comply with guidance from the Equal Opportunity Employment Commission (EEOC) and with state laws that restrict the use of arrest records in employment screening. It’s also in line with GoodHire’s commitment to fair hiring practices.
What it Means
A number of states, including California and New York, already prohibit employers from considering arrests not leading to convictions when evaluating a candidate. Illinois, which has a similar restriction in place, even codified the statute under its Human Rights Act, suggesting that this practice is not merely an employment issue, but a much larger social issue.
This new approach will insulate employers using GoodHire from claims that they considered criminal record information they’re not legally entitled to consider under state laws and EEOC guidance.
Of course, GoodHire will continue to report pending cases and convictions that are deemed reportable under federal and state laws, ensuring employers are aware of applicants’ criminal records.
Advice for Employers
The EEOC stated in its 2012 guidance that the consideration of arrests and criminal convictions can result in unintentional discrimination, also known as disparate impact discrimination under Title VII. Recently, the agency is paying special attention to employers that consider arrest records that do not lead to convictions as well as those that systematically deny applicants with convictions without letting applicants explain their records.
Why? It’s easy to assume that if a person has been arrested, then the person has been convicted of a crime. This is not necessarily the case. An arrest is the start of a set of legal procedures, and the result is not always a conviction. The charges may be dropped, or the person may be required to perform a certain number of community service hours.
In addition, decades’ worth of research has demonstrated that minority populations are arrested and prosecuted at rates that are disproportionately higher than their rate of representation in overall population.
Two recent employment background screening cases illustrate the EEOC’s activity. In one case, a Maryland judge ordered the Commission to pay nearly $1 million in attorneys’ fees to the defendant company in EEOC v. Freeman for pushing a case with no credible evidence. Yet, in another lawsuit alleging a company’s background screening policies violated Title VII discrimination laws, the Commission got BMW to wave the white flag and settle for $1.6 million.
Many in the industry believed the embarrassing result in the Freeman case would give the EEOC pause. The result in BMW, however, will most likely add new vigor to the EEOC’s campaign.
Leveling the Playing Field
When it’s all said and done, an arrest, in itself, is nothing more than an accusation. Of course, it would be naïve to say that arrested individuals never really commit the conduct alleged. Frequently, arrests are based on legitimate complaints and actual conduct, and many times, those arrests lead to conviction.
But we are fortunate enough to live in a society where guilt is not presumed and must be proven in a court of law. An arrest certainly doesn’t provide this proof. And even within the confines of a courtroom, a jury deliberation room, and a judge’s bench, discrimination lurks and lingers.
This is why EEOC enforcement is important. Job applicants need a champion to fight against potential and actual discrimination that sometimes taint the criminal justice system. The Commission’s investigations and enforcement actions are analogs to community policing: deterring would-be bad-doers from doing “bad,” and remediating the bad that has already been done. This is essential in leveling the playing field for all individuals looking for a steady job. It’s a laudable goal, and one which GoodHire fully supports.
Importance of Individualized Assessments
If an employer can demonstrate a “business necessity” for taking criminal conduct into consideration, it’s insulated from EEOC enforcement. For example, an employer can take convictions into consideration, as it suggests a defendant did engage in the criminal conduct at issue.
For employers wondering how they can demonstrate this “necessity” in considering arrests, the answer is simple: they can’t. Because arrests do not provide sufficient evidence that an individual actually engaged in the criminal conduct at issue, the EEOC has stated the arrest itself cannot be used against an applicant for employment.
For employers considering an adverse action due to criminal record information on candidates, be mindful of the EEOC’s guidance, and perform ”individualized assessments” for those applicants. These assessments require the employer to provide an opportunity for the applicant to explain the circumstances surrounding the criminal conduct.
Employers must further consider a number of other factors including how long ago the criminal conduct occurred and whether the nature of the offense is related to the duties and responsibilities of the position. This individualized assessment can satisfy the “business necessity” element of a Title VII defense.
These requirements and restrictions may seem a bit overwhelming to interviewers and hiring teams, especially now that the EEOC is applying more heightened scrutiny to companies’ background screening practices. This can make it really easy for employers to see the EEOC as an antagonist, but it’s important to be mindful of the policy behind this kind of enforcement.
Whether or not the EEOC’s recent enforcement efforts are a bit over-zealous, at the end of the day, implementing compliant screening practices is not only responsible from a risk-management approach, but it’s socially responsible, too.
We are pleased to assist our customers with federal and state law compliance and champion the rights of job applicants around the country. GoodHire has always been, and will continue to be, committed to transparency and fairness.
Putting those two ideals before the bottom-line has helped make GoodHire the consumer reporting agency that it is today. And for all employers following our lead, we think you’ll find it results in your organization making many more “good hires.”
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.