Strong Criticism for EEOC Background Checks Guidance

The Equal Employment Opportunity Commission has been busier than usual over the past couple of years, filing lawsuits against a variety of employers, and claiming everything from gender and work bias to harassment. Clearly, many small businesses are quite fed up. Recently, a House hearing on the use of background criminal screenings by employers, found many examples that illustrate how the Equal Employment Opportunity Commission’s actions are hurting small businesses and employers in America.

Small businesses very often find themselves stuck between a rock and a hard place. They try to follow the federal agency’s complex guidance about criminal background checks, while adhering to state laws. They’re also quite concerned about whether they will be sued by potential job applicants for using background screening checks, or by clients for not using these. In one case, a residential air duct cleaner visited a house on a routine maintenance check, and raped and killed a woman. This was a sex offender who had been convicted twice of rape before. His employer did not run a background screening check in deference to Equal Employment Opportunity Commission guidelines, and the result was clear to see.

Clearly, there is a disconnect between the kind of lofty ideals that the Equal Employment Opportunity Commission holds, and the practical realities of life in America. The fact is that many employees come to work with very serious crimes in their backgrounds, and background screening checks are an absolute necessity. However, the agency guidelines hold that such screening checks are discriminatory, especially against minority or black applicants. The agency wants employers not to reject applicants based solely on criminal convictions in the past. Employers need to consider the nature of the offense, the seriousness of the offense, the amount of time since the conviction or the incarceration as well as whether the incarceration would have any effect on the work that the person would be performing in the business.

While those concerns are legit, the fact is also that there are certain crimes that are serious, and persons with these crimes in their background cannot be exposed to consumers. This is very true especially of service-oriented industries, where consumers may be in close contact with employees. For example, sending a technician, a plumber, or a carpenter employee to a client’s home without subjecting him to a criminal background screening check first, can be dangerous.

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