During the past several years - decades even - the number of background checks an employer conducts has grown substantially. Background checking used to consist of only contacting two or three employment or personal references. Now, background checking may include checking one's credit history, criminal record, and driving record. What could be the reason for the growing number of background checks? One reason may be that employers want to reduce their legal liability for hiring past criminals who could cause injuries to others or to themselves. Another reason could be growing national security concerns.
Most employers conduct background checks to acquire information that was not supplied on the resume or to verify information provided on the employment application. Employers do have a legal obligation not to employ a candidate who poses a potential threat to other employees, and in the absence of a thorough background check, an employer can be held responsible for an employee's criminal acts committed on the job.
Problems with background checks
Even though background checks are important for employers to conduct to avoid negligent hiring, some checks can create disparate impact by race. Title VII of the Civil Rights Act prohibits employers from using background-checking tools that disproportionately exclude candidates based on race, color, religion, sex, or national origin when a background check is not considered "job-related and consistent with business necessity." Discrimination charges have increased in recent years in direct relation to the increase in background checks.
The increase in the number of background checks and the types of checks being conducted during the hiring process has affected groups including African Americans and Hispanics. African Americans are nearly twice as likely as Caucasians to have poor credit scores; therefore, credit history checks may be seen as discriminatory against this group of candidates. In addition, two out of every three nonviolent criminals released from prison are African American or Hispanic. These groups are more likely to be refused employment due to their criminal histories.
Employers need to take great care in identifying the reasons they conduct certain types of background checks. The checks that are conducted need to be relevant in determining the abilities of the candidate to perform the particular job. Otherwise, the employer could be accused of engaging in discrimination. For example, if a job requires an employee to work with a large amount of money, a credit history check may be appropriate. However, if a company regularly conducts credit checks on candidates when the position requirements have nothing to do with handling money, the employer could get into legal trouble as this type of check may exclude a particular group of candidates, and there is no business justification for conducting such a check for that particular job.
As employers are deciding whether to conduct a certain type of background check, they need to consider the relevance of the results. For example, if a criminal background check reveals a drunk-driving conviction, an employer must determine if that conviction should be a consideration in whether or not the candidate can perform the job. The drunk-driving conviction may be a consideration for a semi-truck driver, but less likely of a consideration for a grocery store stocker, for example.
Employers are trying to make smart and thorough hiring decisions, but some types of checks may not be defensible. Employers should refrain from conducting background checks that are not clearly job-related, and should be prepared to provide strong evidence supporting the decision to conduct particular types of checks. Without such evidence, the employer is at an increased risk of discrimination charges.