Background Investigation

How the Government is Influencing Background Investigations

Background investigation capabilities have grown more sophisticated, thorough, inexpensive, and common. The increase in popularity of background checks for making hiring decisions has drawn mounting criticism from social services agencies, minorities, and the Equal Employment Opportunity Commission (EEOC).

The EEOC has long taken the position that criminal records checks could violate Title VII of the Civil Rights Act, leaving employers vulnerable to legal actions for civil rights violations. EEOC enforces federal equal opportunity laws, and disproportionate numbers of African Americans and Hispanics serve jail time compared to white citizens.

People from lower economic classes also tend to have more extensive criminal records, perhaps due to environmental pressures or the inability to afford good legal representation. Federal law prohibits job discrimination on the basis of race, age, religion, creed, sex, disability, age, or genetic makeup.

Avoiding Legal Discrimination Suits

The EEOC has recently issued updated guidelines to help employers and screening companies to avoid legal actions. Both screening companies and employers could face legal action from people representing either side of the controversial issue. Minorities could file a suit for violation of their rights due to hiring decisions based on background checks.

However, employers also face the potential for legal action from workers injured or harassed on the job by violent co-workers. Women and gays could sue for civil rights violations in cases of sex discrimination, rape, or hate crimes. Employers face negligence charges if employee offenders have criminal histories, and companies hire individuals despite their risky backgrounds.

Finding Workable Solutions

The EEOC recommends that companies define a clear set of guidelines about criminal histories that affect people’s ability to do the job. For example, marijuana use during youth seldom impacts mature workers’ abilities, but severe substance abuse histories pose numerous risks.

Employers must learn to choose between acceptable and unacceptable risks. Nonviolent shoplifting convictions, drunk driving, writing bad checks, or criminal trespass histories might constitute crimes that carry fewer risks. Violence, previous civil rights violations, murder, rape, or sexual misconduct present clear workplace risks.

The nature of the job position must also affect the degree to which criminal histories should influence hiring decisions. Factory workers without public contact require less stringent hiring standards than workers who handle money, interact with the public, or have access to confidential information.

The EEOC also warns of dangers in considering arrest records rather than actual convictions. Minorities often face false arrest in poor neighborhoods because innocent bystanders might fit the general physical descriptions or police could engage in illegal criminal profiling. Real criminals leave the area of their crimes, but unwitting innocents might be found hanging around the vicinity simply because they do not know a crime has been committed.

Federal Versus State Guidelines

In many cases, federal law requires background checks for employees working with children, disabled people, or elderly health patients. Federal guidelines also require screenings for financial positions, managerial jobs, and workers with access to confidential information. Following federal guidelines clearly indemnifies companies against Civil Rights Act violation claims.

However, many states might also pass more restrictive screening requirements. If state law conflicts with Title VII, then employers could still be liable. The conflict puts employers in a quandary, requiring clear policies that balance discrepancies with reasoned guidelines employers might use to justify their position. All things being equal, companies should err on the side that offers the greatest public safety.

The EEOC recommends that companies weigh three factors in the decision-making process. Following these guidelines will offer employers defensible actions in legal cases. The procedures also speak to fairness issues. People need opportunities to work.

  1. Employers must make no blanket decisions but weigh each case on its own merits. The nature and gravity of each offense should be assessed.
  2. Time should be a mitigating factor. Offenses committed during youth or many years in the past should carry less weight than more current violations.
  3. The degree to which an offense affects job performance must also be considered. Violations that clearly affect job qualifications or performance can be used to deny employment. Irrelevant offenses should not be used to summarily disqualify applicants.

Clear Policies Reinforce Rule of Law

EEOC guidelines suggest that background checks be used when required by law. Using credit records for hiring decisions should only be used when state or federal law requires that option. More states have banned the practice of using credit scores in hiring decisions, and many localities are weighing the pros and cons of legislative fixes.