Conducting Background Checks During the Hiring Process

Background checks can be very useful to hiring managers in recruiting and hiring the most reliable employees and as the economy continues to struggle, managers are becoming more and more careful in their selection of qualified workers. Not only can background checks help determine whether or not a job candidate has been less than truthful on their application, but they can also alert hiring managers to the possibility that this employee may be more likely to engage in violence or theft in the workplace.

However, conducting background checks improperly can open a company to EEOC (Equal Employment Opportunity Commission) charges as they relate to Title VII of the Civil Rights Act. The EEOC web pages site the landmark case on this issue of use of criminal records in the hiring process:

Green v. Missouri Pacific Railroad Company, 523 F.2d 129010 EPD ¶ 10,314 (8th Cir. 1975), is the leading Title VII case on the issue of conviction records. In Green, the court held that the defendant's policy of refusing employment to any person convicted of a crime other than a minor traffic offense had an adverse impact on Black applicants and was not justified by business necessity. In a second appeal following remand, the court upheld the district court's injunctive order prohibiting the defendant from using an applicant's conviction record as an absolute bar to employment but allowing it to consider a prior criminal record as long as it constituted a business necessity. (

Note: More recent statistics also show that arrest and incarceration rates are particularly high for Hispanic men.
From this case, the three "Green Factors" were identified as criteria for employers to use as they determine the weight of a criminal background check for a specific job:

  • The nature & gravity of the offense
  • How much time has passed since the offense
  • The nature of the job being applied for


Last year, the EEOC approved a revision of their guidance to employers on how they should consider arrest and conviction records in hiring decisions. Basically, the Commission states that, before disqualifying an applicant from employment because of a criminal record, the employer should have a dialogue with that individual and assess them based on these Green Factors.

What types of evidence might be used against an employer in a discrimination suit?

  • Comments exhibiting prejudice toward a protected group which are made by a person at the employing organization. These comments, which may be simply derogatory or may also express a stereotype regarding criminality, could be proof that a bias affected the assessment of the applicant's criminal record.
  • Inconsistencies in the process. If the employer requested a criminal background check more frequently for applicants of particular racial/ethnic backgrounds, or gave some groups (in non-protected classes) the chance to explain the results of their background check more often, that would also show disparate treatment.
  • Comparable applicants (applicants who are similar to the person bring the charges in pertinent aspects, with the exception of membership in the protected group). These persons may include those in similar jobs, former employees, as well as those who were chosen for the job over the charging party. If the charging party was not dealt with the same as these other individuals (e.g., the charging party had to undergo additional or different criminal background checks, or his or her background check report was evaluated by different standards), that could be evidence of disparate treatment.
  • Company statistical records. An analysis of the the employer's applicant data, employee data, and criminal background records may help to clarify whether or not the employer considers criminal background information more heavily against applicants who are members of a protected class.


What can you do to keep your company out of court?

To keep your company out of court, it is critical to adopt sound procedures for using background checks. Here are some basic rules for hiring managers:

  1. When you are in the process of hiring, only request background checks on those candidates to whom you have made a condition offer - the condition being receipt of a clear background check report.
  2. Make sure that the information you are seeking from a background check is relevant to the candidate's job description. For example, a credit background check would be relevant to conduct if the position was a bank teller.
  3. Keep all background check reports locked away.
  4. Have a written policy for conducting background checks and do not deviate from it for certain individuals. In order to avoid discrimination charges, make sure that, for every candidate to whom you make a conditional offer, you process the same type of background check and then follow the same rules for each candidate.


Note: Always consult your lawyer to discover the laws regarding conducting background checks for the state(s) in which you have employees.The HR Group will be holding a legal briefing on conducting background checks in August of this year.  Click here to register early for this event.