Our YouTube posting of our Background Checks Under Fire webinar received this comment last week:
Clearly, this individual assumes that any employer who includes criminal history as a criteria in making hiring decisions automatically rejects applicants with any past criminal offenses, regardless of the rest of the applicants’ qualifications. This makes me a little crazy because this has been the extreme exception in the 15 years that I’ve been consulting with employers on these issues or in my HR career prior to that. However, I tried to be sweet and lovable in my reply:
kckves, perhaps you haven’t hide time to watch the video. If so, that is a bit ironic because you made assumptions about it based on limited information, much as you seem to believe I advocate that employers do when making hiring decisions about former offenders.
The entire point of the webinar is to give employers guidance and a tool to help determine what criminal offenses are directly related to a specific job, based on position and environment-specific risks and the age of the offense. I never advocate any blanket policy that excludes former offenders from consideration for employment simply because they have had some past criminal history.
Certainly there are certain offenses that absolutely bar those offenders from certain kinds of employment: sex offenses and positions that work with children; recent driving while intoxicated offenses for individuals who will be operating a motor vehicle or operating heavy equipment; recent theft offenses for individuals who are in cash management positions. However, there are many other jobs where these offenses would not be automatic bars to employment.
An individual’s criminal history is only one part of what they present to a prospective employer, along with their education, prior work experience, and skill set. I always encourage employers to review the full applicant, not just any one component of their background.
(Okay, maybe the opening line was a little snarky. Like I said, this makes me crazy.)
Unfortunately, this commenter’s perception of employment background screening based upon conjecture and anecdotal information is not uncommon.
The National Employment Law Project published a report in 2011 painting employers’ use of criminal history with a broad brush based upon a few anecdotes of admittedly bad practices. The next year, the EEOC published an overreaching guidance on employer’s use of criminal records, a discussion of which is the core of my webinar, Background Checks Under Fire: Policy Considerations to Avoid Discrimination Claims. Additionally, many states and municipalities have embraced some form of the Ban the Box movement, again making their decisions based on anecdotes rather than empirical data.
The good news for employers in Texas and most other states is that beyond Title VII’s expectations that employers avoid policies without a business necessity that result in a disparate impact on protected classes, there aren’t additional limitations on employers’ ability to review criminal history as a part of evaluating candidates’ fitness for positions. In fact, no plaintiff has won a Title VII claim based on an employer’s use of criminal history since 1975! However, that hasn’t stopped the EEOC from continuing to file lawsuits against employers they believe are discriminating against former offenders.
We’ve published our webinar schedule for the first half of the year. Attending those and perhaps reviewing some of our previous webinar records will help you make sure that your policies and procedures are up-to-date. Of course, you can always call me to discuss your company-specific challenges. My number is 817-921-5286 or, if you aren’t blessed enough to live in the Fort Worth area, toll-free 877-473-2287.
Alternatively, you can just anonymously blast me on YouTube.