Wednesday, July 27, 2011

Calling for a balanced approach to criminal background checks

Yesterday, the EEOC continued its series of public meetings examining hiring practices as alleged employment barriers, covering employers’ use of arrest and conviction records. According to the EEOC’s press release, it is trying to strike a balance between workplace fairness and workplace safety. Let’s hope that the EEOC is serious about being balanced in its approach to this important issue.

The EEOC’s position has always been that blanket policies that disqualify people with criminal backgrounds violates Title VII. Instead employers should undertake a job-by-job, employee-by-employee, check-by-check analysis of the relationship between the conviction and the ability to perform the job. At the minimum, the EEOC should continue this approach.

Nothing will be served by tightening the reigns on employers’ ability to conduct reasonable criminal background searches. Consider, for example, the May 2009 verdict against a Virginia assisted living facility that failed to discover that it had hired a sex offender. This example might be extreme, but it illustrates that criminal histories are necessary and relevant for many employers. Every employer does not need to check the criminal background of every applicant. However, it is imperative that the EEOC allow employers the flexibility to decide for themselves which positions warrant criminal history histories, and then which crimes disqualify a candidate from employment.

Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or