ASA Supports Efforts to Promote Employers' Use of Criminal Background Checks

American Staffing Association (03/02/12) by Anne Duffy

Employers' ability to perform criminal background checks during the hiring process is essential to ensure safety in the workplace. Recent activity at the U.S. Equal Employment Opportunity Commission suggests that the manner in which employers access and use criminal background checks may be limited through forthcoming agency guidance.

Last July, the EEOC held a public meeting to discuss the topic of employers' use of criminal history checks, which could lead to the agency revising the existing guidance on the issue. The meeting was part of a series convened by EEOC to examine the implications of various hiring practices.

ASA has been participating in a coalition of business groups concerned that the EEOC's plans to revise its longstanding guidance will make it more difficult for employers to review the criminal histories of job applicants and volunteers. Earlier this month, the coalition sent a letter to federal lawmakers emphasizing the positive aspects of criminal background checks and the concerns over the potential guidance that may inhibit employers' use of these checks. Part of the concern is that the EEOC does not intend to publish its revisions for public comment prior to issuance, which would preclude meaningful consideration of employers' concerns.

EEOC first published written guidance on employers' use of criminal history checks in the 1980s. Although the agency has said for several years that it would issue new guidance to employers regarding the use of criminal background checks, it has not yet done so. It is anticipated that new guidance will be published in the near future.

EEOC has a longstanding position that an employer's policy of excluding an individual from employment because the individual has a criminal conviction record is unlawful under Title VII of the Civil Rights Act of 1964, unless the policy is justified by a business necessity.

Advocates for limiting employers' use of background checks contend that the use of background checks adversely affects members of minority populations that are statistically more likely to have criminal histories.

In addition to contacting lawmakers, the coalition is holding a conference in Washington, DC, this month to examine why private and public sector employers rely on criminal background checks. The goal is to create as much awareness on the issue as possible while employers wait for the EEOC guidance to be published.