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Evaluating a Job Applicant’s Background History

Use of background information can disproportionately affect people of various racial and ethnic backgrounds, along with gender. This could expose an employer to liability.

August 25, 2014

When making hiring decisions, employers routinely examine a job applicant’s background. Using background history, especially criminal information, requires extra diligence by human resources professionals, especially where the information is used to deny the applicant a job.

Use of background information can disproportionately affect people of various racial and ethnic backgrounds, along with gender. This could expose an employer to liability under Title VII of the Civil Rights Act of 1964. Also, the Fair Credit Reporting Act requires strict compliance when hiring outside vendors to conduct background checks. 

Below are tips employers should consider when developing an effective hiring process:

1. Define in Writing Job Duties and Expectations. By having written position descriptions, employers can better justify using background information, especially criminal history, to reject an applicant from consideration.

2. Evaluate an Applicant’s Criminal History Under the “Green Factors.”The U.S. Equal Employment Opportunity Commission advises employers who use criminal background history to consider the “Green factors” (so named after a court case) to determine whether the negative history would affect people conducting their job duties. This includes the nature and gravity of the offense or conduct, the time that has passed since the offense or conduct and/or completion of the sentence, and the nature of the job held or sought.

3. Do Not Use Mere Arrests as a Basis for Rejecting an Applicant. The criminal justice system presumes that individuals are innocent until proven guilty. Using arrests with no other information can disproportionately affect people of different races and ethnic backgrounds. The EEOC is especially skeptical of employers that reject qualified candidates solely because of past arrests. In many states, using arrests as a basis to deny employment is illegal.

 4. Do Not Ask About Criminal Histories That Have Been Expunged. Except in rare circumstances, employers are prohibited from asking about sealed or expunged criminal records. Employers should make sure that applicants are informed that they need not provide this information.

5. Preserve Employment Hiring Records for at Least Two Years. The EEOC advises that employers preserve employment hiring records for at least two years after the records were made, or the personnel action was taken, whichever comes later.

6. Keep Up With the Changing Legal Landscape Regarding Background Checks. The law on employment hiring practices changes frequently. As an example of new law, the Illinois Legislature recently passed a bill making it illegal for employers of 15 or more people to even inquire about criminal history until after an applicant has been deemed qualified. House Bill 5701 was sent to the governor in June and was awaiting his signature as of this writing. If it becomes law, many Illinois employers may have to modify their hiring and recruitment practices.

Daniel R. Saeedi is an associate at the law firm Taft, Stettinius & Hollister. Comment below or email editors@workforce.com. Follow Workforce on Twitter at @workforcenews.