The Criminal-Background Catch-22

Sunday, September 16, 2012
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Though employers have had a few months now to become familiar with the U.S. Equal Employment Occupation Commission's guidance on the use of criminal background checks, questions and confusion about how best to respond have only grown.

The guidance, issued April 25, is broad in its scope and specificity, essentially recommending that employers now only ask to see criminal records when such inquiries can be proven to be job-related. It also recommends that HR professionals, recruiters and hiring managers not automatically reject candidates with criminal backgrounds -- except for jobs in which particular convictions logically have no place -- but that they now conduct "individualized assessments" of those candidates to avoid liability under Title VII.

What this has created -- especially in this presidential election year, when a November Republican victory could change the tone and direction of many directives coming out of Washington -- "is a very tough Catch-22," says Gerald L. Maatman Jr., partner at Chicago-based employment law firm Seyfarth Shaw. "You either hire someone who could hurt your workforce, or you get in trouble for not complying with the EEOC mandate and EEOC enforcement."

The guidance has also required many of Maatman's employer and chief-human-resource-officer clients "to spend a lot of extra money" to train their recruiters and hiring managers to rethink criminal background checks and learn how to conduct these individual assessments -- "without even knowing the end result of all this" due to the upcoming election.

Election or no, "I think the jury's out on just how possible this [revamping of all hiring practices and training] really is," he says. "A lot of my clients are saying, 'I could comply if I had buckets of money to spend to administer this.' "

In some cases, employers are simply refusing to follow the guideline for fear it will either put them out of business -- considering this new cost of training -- or create an unsafe working environment, says William Tate, president of Chicago-based HR Plus, a screening-solutions provider. "There are companies out there saying, 'I'm not going to do this. I want to keep my employees safe,' " he says. And, while he understands the sentiment, he doesn't think that's such a good move.

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"Most companies may see this as an either-or, a Sophie's Choice (as the movie title suggests) between following the rules and making your company a safe place to work," he says, "but the real suggestion I make [to clients is to ask], 'How can we do both?' "

Tate says there is a way, without bringing down a company, to continue "doing diligent background checks to make sure you know who you're bringing into the workplace, yet, at the same time, doing the necessary steps as advised by the EEOC after a conviction is found." It doesn't cost an arm and a leg, he says, and it's do-able to follow the EEOC's list of individual pieces of evidence employers should review when making their individualized determinations.

A Berkshire Associates white paper by Nicole Butts, titled Understanding When and How to Use Conviction Records in Employment Decisions, clearly states that "a covered employer's reliance on a criminal record to deny employment violates Title VII only when the reliance on that criminal record is part of a claim of employment discrimination based on race, color, religion, gender or national origin. The guidance," it says, "is [intended] to illuminate when and how such records should be used ... ."

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