Are Criminal Background Checks Discrimination?
They can be used for hiring decisions in Texas, but with discretionBy Lindsay Kramer | Last updated on January 24, 2023
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Background Checks in HiringCriminal background checks are governed by the Fair Credit Reporting Act (FCRA). Under this law, you must do the following to conduct a criminal background check on employment applications:
- Obtain their written permission
- Notify them if you will screen applicants based on the results, and provide each applicant a copy of their results
- Notify them if you deny an applicant a job because of their report results
Is It a Form of Discrimination?Although conducting a conviction history report on a job applicant is not discriminatory in itself, it can become an act of discrimination if it is the reason why applicants are not treated equally at any point of the interview and hiring process. Choosing only to require applicants of a specific race or ethnicity to complete criminal background checks is an act of discrimination. Judging the results of criminal background checks differently for applicants of different backgrounds is also an act of discrimination. For example, ignoring minor drug convictions for white applicants but using them as your basis for refusing to hire black or Latino applicants is an act of discrimination. Screening applicants through criminal background checks is legal, provided you can justify your choice to do so. Consider how an individual’s criminal background would impact his or her ability to perform the job and whether he or she would pose a risk to other workers or customers based on this background. If an individual’s background check does show a criminal history, consider how much time has passed since the arrest or conviction and the gravity of the offense. You have the right to opt not to hire employees with criminal records, and applicants have the right to explain their background checks’ results and provide mitigating information about their ability to perform the job. The burden of proof in a discrimination case starts with the applicant, but a reputable attorney will tell you the best protection an employer can have is consistent hiring policies and records. A Texas lawyer can offer legal advice on applicable state law and offer an individualized assessment to avoid employment discrimination claims. “Then you must provide a lawful, non-discriminatory reason for doing what you did,” Stuart says For more information about this area, see our overviews on employment law for employers and discrimination.
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