Diversity & Inclusion, Recruiting

Whom Are You Hiring? Looking into an Applicant’s Checkered Past

For good reason, you probably spend a significant amount of time worrying about legal compliance for the employees on your payroll. But what about those who didn’t get the job? Some applicants might have simply lacked the necessary credentials, but others may have been weeded out through background checks. Many of you may consider criminal background checks a rote part of the application process, but they’re absolutely critical to a safe and effective work environment.


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Employers run background checks on potential employees to combat theft and fraud and eliminate the risk of liability for negligent hiring. More recently, the discussion surrounding criminal background checks has shifted its focus to potentially dangerous employees.

With the spotlight on workplace violence growing, tolerance for volatile and troublesome employees is at an all-time low, and background checks have arguably never been more important. But although best practices require a thorough background check of job applicants, it’s equally important to be mindful that antidiscrimination laws are still in play before someone is hired.

Stricter Isn’t Necessarily Better

Background checks are unquestionably necessary, but they also present some risk if they aren’t used properly. Indeed, relying on background checks and criminal history to make hiring decisions poses the same antidiscrimination considerations you face every day when you make employment decisions that affect the people already in your workforce.

Recently, for example, Target paid $3.7 million to settle a class action lawsuit alleging its criminal background check policy was so strict and unforgiving that it disproportionately discriminated against otherwise qualified African-American and Latino job applicants.

Certainly, employers must consider criminal history when making hiring decisions, but problems often arise when your screening tools aren’t linked to relevant questions that actually assess candidates’ qualifications for the job.

For instance, examining how long ago the offense occurred and whether it was a violent or a nonviolent crime will help you better evaluate a person’s actual fitness for employment than imposing a blanket prohibition on hiring any applicants with a criminal history.

Ban-the-Box Laws Help Employers Reduce Liability

Because of the serious risk of discrimination posed by broad criminal background checks, many states and municipalities have enacted “ban-the-box” laws, which prohibit employers from inquiring about criminal history until a conditional offer of employment is made.

Some local laws even prohibit employers from considering criminal convictions if they occurred too long ago. Ban-the-box laws are aimed at ensuring employers meaningfully consider applicants’ criminal history in relation to the job at hand rather than making quick-draw conclusions based on stereotypes that could violate state and federal antidiscrimination laws.

Not only should you carefully evaluate a candidate’s criminal history against his qualifications for the job, but you must also make sure your judgments are consistent across all classes of applicants. For example, if a hiring manager chooses to disregard a qualified candidate’s past drug conviction, she should make sure that she would also disregard the same criminal history for a qualified candidate in a different protected class.

Bottom Line

When used appropriately, background checks can help you sidestep a disaster before it happens; when used sloppily, they can pose daunting legal risks. However, forgoing background checks altogether can be a costly oversight that broadens your exposure to negligent hiring claims.

In one tragic case, a truck driver caused an accident that resulted in the death of another driver. The driver had apparently lied about his employment history on his application, and the employer would’ve discovered that he had two previous license revocations if it had conducted a background check.

The background check that was never run would’ve cost the employer $15 and taken a total of 15 minutes. Instead, a jury found the employer 75% liable for the accident and awarded the victim’s family $7 million.

You can fulfill your duty to conduct responsible background checks by familiarizing yourself with applicable state and local ban-the-box laws, conducting an exhaustive background check at the appropriate stage in the hiring process, and making an individualized assessment based on an applicant’s fitness for the job.

Shelby A. Hicks-Merinar can be contacted at shelby.merinar@steptoe-johnson.com.

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