On April 25, 2012, the Equal Employment Opportunity Commission (EEOC—they regulate workplace issues like discrimination) issued new rules concerning businesses use of criminal background screening.

The EEOC’s motivation behind these new rules is their concern that minorities are being unintentionally discriminated against in the workplace due to the higher number of minority arrests & convictions for crimes.

Criminal background screening, as well as other forms of screening, such as credit & social media checking, have become increasingly popular ways for companies to improve their hiring decisions. However, coupled with our recent economic troubles & decreased federal funding, agencies like the EEOC are doing whatever they can to remain relevant while staying true to their mission of combatting illegal forms of workplace discrimination.

This EEOC has a valid concern. However, without getting into an analysis of the statistics, for purposes of this article, & due to the EEOC’s broad regulatory influence,let’s assume that it’s true–minority arrest & conviction rates are higher than white arrest & criminal conviction rates. Personally, I agree with the research that shows that these rates are higher among minorities than whites. Full disclosure–I’m a white male, but I also believe that the EEOC is anti-business.

To improve their hiring & to avoid the liability of hiring the wrong person, employers have to rely on the best information out there. If employers have a good faith belief that screening employees for criminal convictions is a good practice, then who is the EEOC to second guess that decision? As a business owner, you weren’t the race-profiling arresting officer, & you weren’t the judge or jury. Moreover, we all know that the EEOC won’t be held liable if an employer finds themselves in the news after hiring a convicted child molester or drug dealer because they were afraid to do a background check. Because the EEOCs rules can be onerous & difficult to understand, & because federal agencies are prone to adopting a “do as we say, not as we do” approach to regulation, just the announcement of this new guidance will scare & confuse any small business owner or operator. Well, it’s not that bad. Not yet at least.

Essentially, the EEOC wants all businesses with 15 or more employees (that’s who they usually regulate) to accept this conviction bias as being true especially when businesses use criminal background screening. The EEOC is basically putting businesses on notice that the use of screening is inappropriate & potentially illegal, if such screening tends to unfairly disqualify minorities from jobs. What does it mean when I say “if such screening tends to unfairly disqualify minorities from jobs?”

It’s an analysis of numbers. If the EEOC receives a complaint about your business, they’ll look at some of the following factors:

  • all of your submitted job applications;
  • where you advertised the opening;
  • exactly how you filled it;
  • whether your hiring criteria matches what they think that your hiring criteria should be;
  • what neighborhoods or communities you tend to hire from; &
  • the ages, race, gender, etc. of the people that you hire.

In other words, the EEOC wants employers of all sizes & types to do their due diligence on their background screening companies & on their own hiring criteria. They want employers to use what they consider to be valid hiring criteria.

So, if you’re going to screen on the basis of criminal records, make sure of the following:

  • You have credible reasons for not hiring convicted criminals. For example, if you own a small factory, & your assembly employees don’t handle money or items of value, then in the EEOC’s opinion, it’s probably not necessary to exclude a felon convicted of theft or robbery from being hired.
  • On the other hand, if you’re small business uses large quantities of commonly stolen metals like copper, & has had a rash of copper thefts, then you could make a strong argument for not hiring convicted thieves.
  • If you’re going to use criminal background screening for hiring, don’t do it in a slipshod or random manner. Have carefully thought out & documented job descriptions & qualifications, & incorporate equal rigor with any background screening you conduct.
  • When selecting a screening company, do some critical analysis & use credible research that’s based on your particular business & industry needs. Consult chambers of commerce or industry associations. Even consult local law enforcement officials (not the race profiling officials though) or criminal science professionals at local schools.
  • When ambiguity or gray areas exist, don’t use cookie cutter or arbitrary criteria to deny applicants. Don’t just follow the herd.

There’s plenty of free and cheap help out there. So no business should feel lost in this process. Moreover, the EEOC doesn’t accept ignorance as an excuse for what they believe to be illegal discrimination.

In case you’re wondering about specific inquiries concerning arrests, the EEOC doesn’t bar this, but because many states & local governments ban arrest inquiries, I don’t advise arrest record screening. As I’ve heard federal judges say, you can be arrested for crossing the street & an arrest is very different from a conviction, so what logical reason can an employer have for factoring someone’s arrest record into the hiring process?

You can exclude hiring someone based on the conduct that led to the arrest though. For example, if you read in the paper that a prospective employee was arrested for solicitation for sex from a minor, you can exclude them based on your good faith belief that the newspaper wouldn’t intentionally lie about this (this actually happened to a client of mine, which is why I use this example).

Again, this is new guidance from the EEOC. And consistent with the EEOC’s methods, & their anti-business approach, this is most likely a warning that further regulation & enforcement are forthcoming. Look for future action in the areas of credit checking & screening out the long term unemployed.