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Background Checks

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On Dec. 6, SHRM member and Pennsylvania state legislative director Jonathan Segal testified on behalf of the Society before the U.S. Commission on Civil Rights. The Commission, an independent, bipartisan, federal agency with the mission to inform the development of national civil rights policy and enhance enforcement of civil rights laws, explored the impact the use of criminal background checks and the U.S. Equal Employment Opportunity Commission’s (EEOC) conviction records policy have had on employment of black and Hispanic workers. 

SHRM’s testimony highlighted SHRM survey results on how HR professionals use background checks in the hiring process, explained the specific role criminal background checks can play in hiring decisions, and touched on two specific areas of concern in the recent EEOC guidance on the use of criminal background checks.

First, the EEOC guidance includes the statement that compliance with state and local laws will not shield employers from liability under Title VII. SHRM’s testimony made clear that this provision places employers between a rock and a hard place—between losing their state license or opening themselves up to other state sanctions or liability if they don’t comply with a state law mandating criminal background checks and risking a class action lawsuit if they go forward with criminal background checks and base hiring decisions on the results. 

In addition, the guidance seems to indicate that the EEOC may justify a Title VII investigation based on national data showing that black and Hispanics are disproportionately affected when employment is denied based on criminal records. In both areas, SHRM recommended that the EEOC clarify how these issues will work in practice.

To read SHRM’s statement presented at the briefing, click HERE.

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