Category Personnel/Employment
Title EEOC and Criminal Background Checks
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EEOC and Criminal Background Checks
by Attorney John L. Cooley
Cooley and Associates PLC

Q: Our school conducts background screening checks on potential employees. We also ask volunteers if they have had any criminal convictions before the school will permit them to volunteer. I recently heard on the news that conducting criminal background checks or inquiring about criminal convictions may expose the school to liability. Can you explain and give us some guidance on what to do?

A: In April 2012, the Equal Employment Opportunity Commission (EEOC) issued new policy guidance involving the use of criminal background checks in hiring. While the EEOC lacks statutory authority to issue binding rules, the policy guidance has a similar effect in that it describes what the EEOC will consider as suspect. The EEOC's theory is based on a statistical analysis indicating that minorities are more likely to be incarcerated than nonminorities. Thus, even through an employer has a neutral policy of conducting background screening checks on all applicants, when that policy is applied, it arguable would have the effect of discriminating. This is referred to as disparate impact discrimination.

According to the EEOC, the potential employee's offense must be related to the job, as outlined in a job description, in order to avoid potential liability. For example, an employer could deny a position to an individual convicted of pedophilia, if that potential employee would have contact with children. However, being convicted of a non-sex-related crime might present a different scenario.

While there is not an absolute prohibition against conducting criminal background checks, a Christian school must b prepared to undertake an intricate "individualized assessment." This requires the school to show that is has a "business necessity" not to hire the ex-offender or that the offense disqualifies the applicant from a specific job. A christian school can also consider other aspects of disqualification, such as whether the applicant is trustworthy and reliable, shows respect for authority, or is a risk to others. In conducting the assessment, schools should consider three aspects: (1) the nature and gravity of the offense or conduct, (2) the time that has passed since the offense or conduct or completion of the sentence, and (3) the nature of the job held or sought.

One other initial aspect of the issue that Christian schools should be aware of is that a number of states have statutes prohibiting the employment of individuals convicted of specific crimes. For example, some states prevent the certification of teachers or prohibit employment of staff with access to children as a result of a specific felony conviction. While Title VII preempts state or local laws, a Christian school should still follow state law regulating employment in certain circumstances.

There are several other matters Christian schools should consider in dealing with this issue. For example, a school should avoid asking about criminal convictions on job applications, but if this is unavoidable, ask only about convictions that are related to the job and consistent with business necessity. Next, a school cannot deny employment on the basis of arrest records, but if the underlying conduct is relevant for employment purposes, the employer mat evaluate such conduct as part of its decision. FInally, once the school receives criminal conviction information, it must take precautions to ensure that it keeps the information confidential.

Last, since Title VII applies to employees, and volunteers are not employees, the school is not subject to liability for inquiring about convictions of volunteers. Determining whether a volunteer who wants to drive on a field trip has been convicted for DUI, had a license restriction or revocation, or had other convictions is permissible on several levels.

LLU 23.3

Notice: This article is designed to provide accurate and authoritative information in regard to the subject matter covered. It has been provided to member schools with the understanding that ACSI is not engaged in rendering legal, accounting, tax, or other professional services. If legal advice or other expert assistance is required, the services of a competent professional should be sought. Laws vary by jurisdiction, and the specific application of laws to particular facts requires the advice of an attorney.

Association of Christian Schools International
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Colorado Springs, CO 80920
Phone: 719.528.6906
ACSI.org

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