The Equal Employment Opportunity Commission’s (EEOC) 2012 guidance on background checks suggests that employers need to exercise more due diligence in their hiring practices. Its guidance on background check practices underscores the importance of five key practices in the hiring process.

1. Hiring policies should not exclude people from employment based on status.

Policies that automatically exclude people from employment based on only certain criteria (such as criminal status, age, disability, etc.) could pose liability. Employers should refrain from developing narrow policies of this nature to avoid potential legal issues.

2. Employers need to monitor adverse impact.

Hiring practices that result in adverse impact for a protected group are unlawful. If a hiring practice or selection method is adversely impacting a protected group, employers should not use it. This is true of any method used to base a hiring decision such as ability/personality assessments, drug tests, background checks, credit checks, etc.

3. Employers must hire based on the essential functions of the job.

The EEOC’s guidance suggests that employers must make hiring decisions based on whether candidates can do the essential job functions. Employers must identify those essential requirements in the hiring process and determine if a criminal record (for example) prevents a candidate from performing those functions.

4. Hiring criteria has to be job-related.

One of the most consistent trends in guidance provided by the government (and EEOC) on hiring practices is to keep all hiring decisions based on job-related criteria. If the criteria that employers are using to evaluate job candidates are not job-related, it will likely not hold up in court. For example, if an applicant's criminal offense is unrelated to the job, then you may not be able to exclude an applicant.

5. Employers must train decision-makers about employment discrimination.

The EEOC’s guidance emphasizes the importance of employers training both HR practitioners and managers on employment discrimination. Any individual who makes hiring decisions should understand employment law as it relates to recruitment and hiring.

While the EEOC only specifically addressed criminal background checks in its guidance, employers should be cautious with using any hiring practices, criteria and/or policies that are questionable against the guidelines provided.

Please note that by providing you with research information that may be contained in this article, ERC is not providing a qualified legal opinion. As such, research information that ERC provides to its members should not be relied upon or considered a substitute for legal advice. The information that we provide is for general employer use and not necessarily for individual application.

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Behavioral Interviewing
This workshop gives participants the skills they need to effectively plan for and conduct an effective behavioral-based interview. It also guides participants through effectively evaluating candidates so they can hire the best candidate. Emphasis will be placed on the selection process, including legal issues facing interviewers.