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With unemployment continuing to hover near 10%, employers are being inundated with resumes and job applications. As a result, more and more companies have begun to background check potential candidates as a means of winnowing the applicant pool.

This would seem like the perfect solution. For a modest fee, employers get a better sense of a potential applicant, while at the same time protecting themselves from negligent hiring law suits and also decreasing bad hiring decisions.

However, with all of the economic uncertainty, an increasing number of employers are facing discrimination lawsuits brought by the U.S. Equal Employment Opportunity Commission (EEOC), as well as other groups of private litigants. According to a recent article written by Cindy Hanson and Kali Wilson Beyah and posted on law.com, between 2003 and 2006, the number of background check-based employment discrimination charge filings increased four fold. These numbers are expected to continue to rise as more unemployed individuals fail to find employment.

Title VII of the Civil Rights Act of 1964 prohibits employers from refusing to hire individuals based on their race, gender, national origin, color or religion. Additionally, it prohibits selection procedures that have the unintentional effect of disproportionately excluding applicants of a particular race, gender, national origin, color or religion unless these selection procedures are job-related or are a business necessity.

For employers conducting criminal searches in order to prevent negligent hiring lawsuits and making bad hiring decisions, this makes life a little more confusing. For years, the EEOC has taken the position that, due to the disproportionate conviction and arrest numbers of African Americans and Hispanic people as compared to white people, comprehensive policies regarding employment decisions based on arrest and/or conviction information have a disparate discriminatory impact on African American and Hispanic applicants. The EEOC has also argued that using credit history to make employment decisions has a significant negative impact on African American job applicants. This is especially significant currently, as many jobless Americans turn to high-interest credit cards to make ends meet or fail to make timely payments on current accounts during the recession.

So what is an employer to do? Start by making the hiring process as transparent as possible. State upfront what the minimum training, experience, and educational requirements are. You may also want to have a diverse selection team. This ensures that should a hiring decision be challenged, the idiosyncrasies one individual can not bias the process.

To avoid discrimination claims, tailor your background checks to fit specific criteria which is relevant to the particular job position you’re looking to fill. For instance, credit history information should be used only for a narrow class of employees – those individuals who have access to company financial resources, customer credit card information, etc. Use of motor vehicle record information may be limited to those employees who are driving a company vehicle, are calling on or transporting clients, etc. Be sure to apply hiring decision criteria (which should be documented) in the same way for all candidates of specific job classes. Also, many states have laws regarding how criminal history information can be used, particularly arrest information. You may wish to limit your consideration of criminal history to conviction information only.
 

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