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Background Checks: Negligent Hiring and Discrimination

You have successfully identified an ideal candidate for your hard-to-fill position. Unfortunately, the background check revealed that your golden prospect has a criminal record. How to proceed from this point can be a bit tricky: passing on this otherwise highly qualified candidate could lead to a discrimination lawsuit; however, awarding this candidate the position could open the company up to liability for a negligent hire.
To protect your company, it’s critical to understand the ramifications of actions taken in regard to background checks. Continue reading to learn how to avoid negligent hiring and discrimination.

Risk Assessment
Companies must exercise “reasonable care” during the employee selection process to avoid hiring applicants who pose a threat of workplace harm. Failure to do so could land the liability for negligence squarely on the employer, should any personal injury or property damage result from the hire.

Taking a close look at the applicant’s conviction circumstances can shed light on factors impacting risk assessment, and insightfully guide the hiring decision.

Understanding Discrimination Laws
Employers are not compelled by federal law to hire applicants with criminal records. However, a knee-jerk reaction to universally bar those with records from employment could lead to other problems. Liability risk arises when a rejection decision directly impacts a specific, protected class covered by Title VII.

The Equal Employment Opportunity Commission (EEOC) guidelines recommend extending the identical screening process to all candidates for a particular position, ensuring that all screening criteria and the resulting decisions are strictly job related and in line with business requirements.

Certain state laws can be more stringent, potentially barring companies from denying employment on the basis of criminal history, unless the conviction can be reasonably or directly tied to the position’s duties. State laws may also restrict the type of criminal history inquiries made, and at what point they are conducted.

The EEOC’s suggestions include creating narrowly defined written policies and procedures for criminal screenings, performing individual assessments, and limiting criminal queries to activities that would be directly job related to the open position.

These steps, and others recommended by the EEOC, can help mitigate an employer’s exposure to liability risk.

Best Practices for Background Checks
When checking an applicant’s history for criminal activity, remember that an arrest is not the same as a conviction. A decision to fire, or decline to promote or hire, based solely on an arrest record is not permitted.

Background checks are a common hiring practice that can enhance the candidate selection process, but it’s important to understand how to conduct them and use the findings properly. Familiarize yourself with EEOC guidelines and your state’s regulations to avoid litigious situations.