Confusion about Criminal-History Guidelines

Survey shows vast majority of HR executives think their organizations are compliant with EEOC criminal-background guidelines, yet a significant number still ask about criminal histories in job applications.

Wednesday, November 13, 2013
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Despite a whopping majority of HR executives believing their companies are compliant with the U.S. Equal Employment Opportunity's criminal-background guidelines, a recent survey suggests otherwise.

The first annual Human Resources Compliance Survey by Brea, Calif.-based PeopleG2 asked 1,493 U.S.-based HR leaders at companies with 25,000 or more employees worldwide whether they believed their organizations were compliant with the EEOC guidelines issued last year. The vast majority (94 percent) said they were, yet 74 percent said they ask job applicants about criminal histories in the application process instead of later in the interviewing stage -- the latter a clear directive of the guidelines.

"EEOC compliance is the No. 1 issue we hear about from our clients, and the findings of this survey don't surprise me," says Chris Dyer, PeopleG2's founder and CEO. "Most companies are still unaware that questions about criminal history on job applications can be discriminatory and that about criminal history should arise as an open dialogue much later in the decision-making stage of hiring.

"In order to make hiring decisions that are not discriminatory, companies must consider candidates for their abilities and job fit before factoring in other information that might impact his or her work," Dyer says. "Companies should 'ban the box' on applications that automatically eliminate job applicants who have criminal histories and consider the positive aspects of each candidate first."

In fact, for employers in any of the 43 cities, counties and municipalities, and/or the 10 states that have passed "ban the box" legislation for public-only or public and private employers, keeping it on their job applications is illegal.

And though the EEOC guidelines do not dictate federal law, failing to follow them could lead employers to discrimination charges under Title VII of the 1964 Civil Rights Act, which the guidelines are based on, says Dyer. Title VII aims to protect employees from discriminatory employer practices that have disparate impact on certain groups. The EEOC maintains criminal-history checks disproportionately impact minority candidates.

"There are court cases in the books already," Dyer says, "in which employers are being ruled against for asking job candidates whether they've been convicted of a crime on the application."

Granted, the EEOC has in no way prohibited criminal-background screening. "All they're putting forth," he says, "is that that part of the process happens at the end of the entire [three-part] application process [application, interview and due diligence], and that if there is a criminal background uncovered, then a specific, outlined and further due diligence be done, and a list of [EEOC-prescribed] questions be asked and applied to that application to ensure an automatic rejection solely based on a criminal history be eliminated."

The only negative for employers and HR, says Dyer, is the added paperwork involved in doing the above.

Yet, confusion about what the guidance really says abounds, he says. "I've heard talk among employers that the EEOC was banning criminal histories, but that's just not true," he adds. "The guidance is simply asking for an objective review, and by moving the criminal-background process to the end, the only result we can possibly have is to yield a higher chance for these people to get jobs."

Though he doesn't dispute there's confusion among employers about what the criminal-background guidelines actually say, Nick Fishman -- chief marketing officer and executive vice president at EmployeeScreenIQ, a Cleveland-based pre-employment screener -- is quick to question the need for the guidance and its added paperwork.

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In his company's Survey Report 2013 -- Employment Screening Practices & Trends: The Era of Heightened Care and Diligence, nearly 1,000 U.S.-based employers were asked, "If a candidate self-disclosed before the background screen or applicant box check, would you be more inclined to hire that person?" Fifty-two percent said they would be more open to hiring them, 40 percent said it would make no difference and 8 percent said they would be less open.

"As you can see," says Fishman, "only 8 percent would be less open, so even though they're screening or checking for criminal histories on applications [79 percent said they are continuing to ask for self-disclosure on applications even after the EEOC guidelines were posted], employers really are open to discussing job relevance."

Fishman says he and his crew are seeing employers really are looking at all the elements of a conviction, and this may have something to do with the attention being paid to the guidelines -- but not everything.

"We're finding, more and more, employers are very smart and they know there's a lot of litigation out there," Fishman says. "They've adapted to this heightened attention. They really are using screening or the box to open dialogue and give the candidate the chance to explain.

"It has always been the case that a conviction is not an automatic ticket to not getting a job, unless it's in one of those industries where that would matter [as in child-abuse crimes and a child-services job or embezzlement in a financial-services opening]," he says.

"We really are seeing employers adapting to the increased attention [to] openness and not ruling a candidate out just because of a conviction," Fishman adds. "I think they recognize too that they want to be fair to their candidates. A stupid prank they pulled when they were 18 [that they were convicted for on felony charges]; that's not a reason not to hire."

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