EEOC recently sued BMW Manufacturing and Dollar General alleging that their use of criminal background checks resulted in discrimination against African Americans. The cases highlight the risks associated with the use of criminal background checks to make employment decisions and provide insight into EEOC’s policy regarding the use of criminal background checks as decision-making tools.

In 2012, EEOC provided “best practice” guidance for justifying the use of criminal background checks to make employment decisions, and in 2012, OFCCP indicated in Directive 306 that its enforcement policies are consistent with EEOC’s. From a validation evidence perspective, three points from the EEOC guidance document stand out:

  • “Identify essential job requirements and the actual circumstances under which the jobs are performed”
  • “Determine the specific offenses that may demonstrate unfitness for performing such jobs”
  • “Determine the duration of exclusions for criminal conduct based on all available evidence”

All three bullets refer to the accumulation of evidence supporting an inference that a person’s criminal history record makes him/her unsuitable for a job.

  • The first bullet speaks to developing a complete understanding of what people in the job are required to do and the work context in which they perform their tasks (i.e., what is it about the job that presents an opportunity for criminal behavior?)
  • The second bullet refers to identifying the criminal behaviors that are the most probable and damaging in the particular job
  • The third bullet speaks to considering the amount of time that has passed since a conviction, such that criminal convictions occurring prior to a certain date are not considered

DCI has conducted extensive research on criminal background checks and developed an Exposure/Opportunity Matrix to help evaluate the appropriateness of using criminal background checks to make employment decisions. To the extent that a job offers exposure to factors that may tempt an individual convicted of a particular crime (e.g., money, drugs, sensitive information) and opportunity to commit a crime (e.g., lack of supervision or security provisions), a criminal history screen for a particular crime is probably more appropriate than if a job does not provide exposure and opportunity. In addition, public trust considerations and length of time since conviction should bear on employment decisions based on criminal background checks.

If you have any questions about validating background check policies, we are happy to discuss different strategies.

by Kayo Sady, Ph.D., Consultant, Eric Dunleavy, Ph.D., Principal Consultant, and Mike Aamodt, Ph.D., Principal Consultant, DCI Consulting Group

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