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The Pitfalls of Background Checks

I often warn clients to be careful about how they conduct background checks because of potential claims of race discrimination.  Now comes a lawsuit illustrating that concern.

A class action filed in New York yesterday alleges that the management consulting firm Accenture discriminates against African Americans and Latinos in the way it conducts its background checks.   In particular, it alleges that Accenture has rejected or fired otherwise  qualified individuals who have criminal records even where the criminal history has no bearing on the individual’s fitness or ability to perform the job.

According to the Complaint, “Such policies and practices are illegal because they adopt and perpetuate the racial disparities in the American criminal justice system … For decades, the Supreme Court and the EEOC have recognized that overly broad restrictions on hiring individuals with criminal records are discriminatory and illegal.”

The teaching here is clear: employers should avoid blanket criminal record policies.  Where a background check reveals a prior conviction, consider whether it would affect the applicant’s ability to perform the job.  For instance, a conviction for embezzlement would be a concern for a bank teller position; a conviction for jay walking would not. You should also consider how old the conviction is, and evidence of rehabilitation.  In the end, you need to be able justify the rejection of an applicant by pointing to legitimate business reasons for doing so.

Two other points:  make sure that background checks are being used and interpreted consistently across the company.  And focus on convictions, not on arrests.

For more guidance, check the EEOC’s website.

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