By Katie Kulp


As published to People 2.0’s blog:

Since a background check can be one of the most revealing factors in the hiring process, the results deserve to be weighed carefully. The current legal landscape, however, is forcing business owners to reconsider so-called “bright-line” background check policies. How could inappropriate use of background checks land your business in trouble?


Bright-line policies – Why they’re bad for business

In legal terms, bright-line rules are clearly defined standards that leave little or no room for interpretation. If this school of thought is applied to background checks, bright-line policies generally result in the rejection of any and all candidates with criminal backgrounds. Traditionally, many business owners liked bright-line policies. Choosing a candidate is hard enough, after all, and strict no-hire policies can seem like an easy way to thin the field. Such policies, however, often conflict with anti-discrimination laws.


The conflict between bright-line policies and anti-discrimination laws

Magnifying Glass Over Word BubbleSince minorities are up to 12 times more likely to be charged with a crime than Caucasians, members of minority groups are statistically more likely to have a criminal record. Notably, the racial imbalance also applies to wrongful convictions. When your business implements a “pass/fail” policy regarding background checks, minority applicants are much more likely to be affected. Of course, few businesses intentionally design their policies to exclude a particular group. Yet, the law cares little for your intent. The Supreme Court of the United States prohibits any policy that, though “not intended to discriminate … in fact [has] a disproportionately adverse effect on minorities.”

In the current legal landscape, bright-line background check policies can land your company in serious legal trouble.


Implementing balanced hiring policies

Protecting your business from potentially devastating lawsuits may require you to rethink and restructure your hiring process, especially your use of background screening results. The Equal Employment Opportunity Commission recommends these guidelines when considering criminal backgrounds:

  • Avoid making criminal history the decisive factor

    Criminal background screening should never be performed early in the hiring process, as this is the most certain way to unfairly exclude an otherwise qualified applicant. In many states, in fact, “ban the box” legislation prohibits businesses from asking about criminal history until later on in the hiring process. By delaying criminal background checks until the final round, businesses demonstrate that they prioritize job skills and other qualifications over criminal history.

  • Consider each case individually

    If a candidate has a criminal background, consider the nature of the offense and if it’s relevant to their potential position at your company. How long has it been since their arrest or conviction? While current legislation does not prohibit business owners from rejecting a candidate based on criminal history, it must be clear that the alleged offense directly and negatively affects the candidate’s ability to perform their specific job.

Flexible, balanced policies aren’t just better for the candidate – they’re much more practical for your company, as well. Similarly, inappropriate use of background checks can cause much trouble and expense for your business.

About the Publisher:

People 2.0 is a full-service Business Process Outsourcing provider, offering a comprehensive set of financial, administrative, and regulatory services to the companies across the entire Human Capital Services industry. The information presented in this article is not legal advice from People 2.0, is not to be acted on as such, may not be current, and is subject to change without notice.

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