With the growth of online databases, the Equal Employment Opportunity Commission (EEOC) and the Idaho Human Rights Commission (IHRC) keep a tight leash on Idaho employers conducting background checks to screen out job applicants. Roughly 73 percent of employers conduct background checks on all potential new hires, demonstrating the ease and efficacy of checking applicants’ criminal history. The theory of conducting background checks is clear—employers want to avoid hiring employees who may be prone to criminal or dishonest conduct. While this reasoning is logical, Idaho employers must follow federal and state guidelines to ensure that their screening processes are not considered discriminatory.
The EEOC’s Federal Guidelines
The EEOC is responsible for enforcing federal laws that make it illegal to discriminate against job applicants. To avoid claims brought by the EEOC, Idaho employers who conduct background checks must comply with two federal statutes: the Fair Credit Reporting Act and Title VII.
Fair Credit Reporting Act
First, Idaho employers must comply with the Fair Credit Reporting Act, which provides applicants the opportunity to respond to employers if rejected based on their criminal record. The Fair Credit Reporting Act applies only to employers who conduct background checks through a Consumer Reporting Agency (CRA), a private company that gathers information from government databases and sells the information to employers. Employers using a CRA must: (1) notify applicants that they intend to conduct background checks, (2) receive applicants’ authorization to conduct background checks, and (3) provide applicants with copies of background checks and a document titled “A Summary of Your Rights Under the Fair Credit Reporting Act” (available on the EEOC’s website). Employers who reject applicants after reviewing a CRA report must provide applicants with additional information, including the CRA’s contact information.
Title VII of the Civil Rights Act
Second, Idaho employers must comply with Title VII of the Civil Rights Act, which aims to prevent employers from using criminal records to discriminate against protected classes. To avoid violating Title VII, employers must: (1) implement processes for running background checks that do not cause “disparate impacts on the basis of race, color, religion, sex, or national origin” and (2) demonstrate that their background checks are “business necessities.” Background checks are business necessities when they provide job-related information. For example, if an employer rejects an applicant for a position as a school bus driver because he or she was previously convicted of reckless driving, the employer must prove that the reckless driving conviction makes the applicant unfit to drive children. In other words, Title VII aims to prevent employers from rejecting applicants solely based on previous convictions.
The IHRC’s State Guidelines
Idaho employers cannot stop there—in addition to federal law, they must also consider state guidelines from the IHRC. The IHRC recommends that employers who administer background checks consider the severity, number, and recentness of previous convictions in determining whether the convictions make an applicant unfit. Idaho permits employers to use background checks as long as they comply with these guidelines and the federal guidelines enforced by the EEOC. For their part, Idaho job applicants are prohibited from bringing a discrimination lawsuit without first filing a claim with the IHRC.
INSIGHTS FOR EMPLOYERS
To lower the risk of employment discrimination claims brought by the EEOC or by applicants claiming discrimination based on criminal background checks, Idaho employers should evaluate their current screening processes. If your company conducts background checks, please consider the following tips:
- Conduct background checks on every applicant or conduct none at all
- Identify essential job requirements and determine specific convictions that make applicants unfit
- Consider convictions’ severity and recentness
- Offer applicants a chance to explain their past
- If you hire a CRA to conduct background checks, make sure you comply with the three requirements of the Fair Credit Reporting Act listed above
- If you find the EEOC’s guidelines difficult to follow, ask yourself whether background checks are necessary at all
Please contact a Gjording Fouser lawyer at 208.336.9777 if you would like any additional information about this topic or any other employment issues facing your company.