Are Criminal Background Checks Discrimination?

They can be used for hiring decisions in Texas, but with discretion

As an employer, you want to know that you can trust the people you hire. For many employers, criminal background checks are a necessary, even required, tool for gaining insight to applicants’ pasts, particularly those hiring for positions that involve working with children, the general public, or sensitive materials.

Although it is legal to use criminal background checks when making hiring decisions, employers must exercise discretion when doing so. Determining if a criminal background check is discrimination can be difficult. The criminal justice system often has an unfair impact on individuals of color and those of lower socioeconomic status. An individual who does not have a criminal record also is not necessarily innocent of criminal acts; if they had their record expunged, he or she can truthfully state that they don’t have a criminal record.

“The EEOC has taken a position that, if you have blanket policies that exclude people with a criminal record at all—even if it’s a misdemeanor or old—that it would have a disproportionate effect on minority applicants,” says Laurence Stuart, an employment attorney with Stuart PC in Houston. “It has been rejected by a lot of courts as not valid and enforceable because it doesn’t look at the certain circumstances. Let’s say I’m a bank; I can’t employ people with criminal histories as tellers or customer service reps because there’s a regulatory requirement.”

Background Checks in Hiring

Criminal 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 an applicant:

  • 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

In Texas, there are a few restrictions to what employers can see on criminal background checks. If an employer is hiring an individual for a position that pays $75,000 or less per year, arrests and convictions that are more than seven years old cannot be included in a criminal background report.

When it comes to the wording on application forms, the EEOC suggests employers ask for background information and assess if it’s relevant or has any impact on the applicant’s fitness for the particular job. “So any questions you ask on the application should be tailored to that,” Stuart says. “So if you ask, ‘Have you ever been convicted,’ it’s probably too broad. What if it was 35 years ago for shoplifting? Is that relevant?”

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.

Is It a Form of Discrimination?

Although conducting a criminal background check 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. “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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