Following up on STE’s cover section coverage of retail security, here is some more news for employers in this sector: The federal government has updated the law regarding how certain employers can use criminal background checks in hiring practices.
The Equal Employment Opportunity Commission (EEOC) has updated Title VII of the Civil Rights Act of 1964, which focuses on employment discrimination based on race and national origin. In the update, the EEOC states that: “An employer’s use of an individual’s criminal history in making employment decisions may, in some instances, violate the prohibition against employment discrimination under Title VII.”
While Title VII does not prohibit an employer from requiring applicants or employees to provide information about arrests, convictions or incarceration, it does make it unlawful to discriminate in employment based on race, color, national origin, religion, or sex. A violation may occur “when an employer treats criminal history information differently for different applicants or employees, based on their race or national origin (disparate treatment liability),” the EEOC Guidance says.
In some industries – such as law enforcement, childcare workers and a host of others, federal laws and regulations restrict the hiring of applicants with criminal records. Title VII does not preempt these federally imposed restrictions; however, EEOC notes, “if an employer decides to impose an exclusion that goes beyond the scope of a federally imposed restriction, the discretionary aspect of the policy would be subject to Title VII analysis.”
What does this mean for retailers? According to the National Retail Federation (NRF), the issue should be raising concerns for its members. “NRF is…very much concerned that the guidelines recommend ‘banning-the-box’ on job applications and restrict employers’ ability to ensure the safety of their workers and customers,” NRF Senior Vice President for Government Relations David French said in a press release. “NRF will continue to hold conversations with the commission, stakeholders and other business organizations on the importance of background checks.”
Even though the new guidelines do not call for a complete ban on criminal background screening, the commission suggested that employers not ask applicants about criminal convictions on job applications. Still, a limit on the use of criminal background checks was a stop short of completely banning them, as many advocacy groups urged the commission to do, according to the NRF.
“Retailers have both a legal requirement and moral responsibility to ensure a safe workforce and secure workplace,” French said. “Background screenings are an essential aspect of the hiring process for businesses and provide employers a better sense of the individuals they are putting into their workforce, representing their company and interacting with their customers.”
NRF reported in a 2011 survey that 97 percent of retailers use background screenings as part of their hiring process and that 87 percent use criminal background screenings.
Here’s a link to the EEOC Guidance document.