September 20, 2013
Questions raised about the adequacy of background checks on the perpetrator of this week's shootings at the DC Navy Yard have brought to the forefront the responsibilities of employers in ensuring a safe workplace at a time when the Equal Employment Opportunity Commission and several states are imposing new restrictions on the ability of employers to conduct background checks. In a statement shortly after the shooting, Senate Homeland Security Committee Chairman Thomas R. Carper (D-DE) noted: “What is the responsibility of our government and contractors to vet employees and from time to time reinvestigate those employees, if concerns arise about someone? . . . What can we learn from this incident to help make this installation and other military installations and federal buildings safer, so that some good could come out of something that was awful?" As is described in a new "CHRO Guide to the Use of Criminal Background and Credit Checks in Employment," prepared by outside counsel Fortney & Scott, the EEOC is aggressively moving against pre-employment background checks on the theory that they have a disparate impact on certain minorities. While the Commission is not specifically banning their use, it is focusing more on how the information is used in the hiring decision and whether the employer is carefully weighing the information gained from the check against the specific needs of the job. As the Guide notes: "Thieves can still be barred from money-handling jobs, those with DUIs can be excluded from driving positions, but a blanket policy that bars all applicants with criminal records must be examined carefully, and probably eliminated." Clearly, employers need to exercise care in this area, but it should also be kept in mind that this is based on EEOC "guidance," not regulations. In recent cases where the Commission moved against employer background checks, the federal courts rejected the EEOC's case as failing to support its theory with the facts.