EEOC URGES RETHINKING ON USE OF BACKGROUND CHECKS IN HIRING

May 15th, 2020

If you are a Minnesota employer that uses criminal background checks when making hiring decisions, the Equal Employment Opportunity Commission wants you to rethink how you use those checks in the hiring process. The EEOC issued new guidelines that although are not ‘legally binding’ they will be used by the EEOC when it enforces claims of employment discrimination.

The goal of the new EEOC guidelines is to encourage employers to consider the impact a past criminal record could have on the job being applied for. It only wants an employer to ask about the criminal history of an applicant when it affects the job itself. An example could be an applicant’s conviction on embezzlement charges that could disqualify that applicant from a position that entails any fiduciary responsibilities.

An employer who makes employment decisions solely on a criminal background check could be in violation of the 1964 Civil Rights Act. For this reason, it is important that an employer consider the nature of any criminal conviction, how long ago the conviction occurred and the general nature of the position being applied for. People make mistakes, we are human and a second chance can be a lifesaver for many.

Two-thirds of all employers use background checks when making hiring decisions. Some attorneys believe that the new guidelines could be in conflict with Minnesota’s state laws. The guidelines state that if an employer makes a decision not to hire someone on the basis of a criminal background check, the employer should inform the applicant of the decision and allow that applicant the opportunity to demonstrate he or she should not be disqualified from employment with the company.

Any time a person feels he or she has been discriminated against based on race, sex, gender, national origin, or disability, as discussed in our post earlier this week, discussing his or her case with an attorney can help them determine if they may have a valid claim. Although discriminating against a potential employee based on a criminal history may not in itself be illegal, employers are required to show how a person’s criminal history disqualifies them from that specific employment opportunity.

Source: KSTP, “Denying Jobs Based on Past Crimes Could be ‘Discrimination’,” Nick Winkler, Feb. 6, 2013.

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