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At U.S. Commission on Civil Rights hearing, HR association questions interpretation of disparate impact
WASHINGTON, D.C., Dec. 7, 2012 — Federal guidance on the use of criminal background checks in hiring serves the public good, the Society for Human Resource Management (SHRM) said today at a hearing of the U.S. Commission on Civil Rights. But clarification is needed on two elements of the guidance issued in April by the Equal Employment Opportunity Commission (EEOC).
Jonathan Segal, who testified on behalf of the 260,000-member SHRM, told the commission that the EEOC guidance is consistent with long-standing case law, but clarification is needed on its interpretation of disparate impact and its mention that compliance with state and local laws will not shield employers from liability under Title VII.
Segal, a partner at Duane Morris LLP in Philadelphia and the Pennsylvania legislative director for SHRM, appeared before the commission briefing “Assessing the Impact of Criminal Background Checks and the Equal Employment Opportunity Commission’s Convictions Records and Policy on the Employment of Black and Hispanic Workers.”
He noted in his testimony that some state and federal laws require employers to conduct background checks for positions such as daycare providers and firefighters. EEOC guidance, he added, puts employers in the tenuous position of “losing their state license if they don’t comply with a state law mandating criminal background checks and risking a class-action lawsuit if they go forward with criminal background checks and base hiring decisions on the results.”
In addition, Segal said, the guidance’s interpretation of disparate impact appears to make employers “vulnerable to an EEOC investigation any time they take an adverse employment action against individuals of certain races or national origins based on criminal background checks regardless of whether they have conducted a valid individualized assessment —seemingly making criminal convictions a new protected status.”
Segal said SHRM believes that “the two areas should be clarified for the benefit of employers, employees and third parties who do business with an employer.”
During his testimony, Segal said that SHRM — the largest association dedicated to the HR profession — and its members are involved with public policy initiatives focused on finding jobs for the unemployed. At the same time, HR professionals consider background checks a standard practice to verify information provided by the candidate and ensure that each individual hired possesses the skills and experience needed for an organization’s success.
He drew from SHRM’s 2012 “Use of Criminal Background Checks in Hiring Decisions Survey,” which showed that about one-half of employers (52 percent) conduct criminal background checks to reduce legal liability for negligent hiring, 49 percent use them to ensure a safe work environment for employees, and 36 percent of employers use information from background checks to reduce their risk of theft and embezzlement.
If negative information is found in a criminal background check, 58 percent of employers offer the candidate an opportunity to explain the circumstances surrounding the results before a hiring decision is made, the survey found.
The full testimony is available online at
MEDIA: For more information or to schedule an interview, contact Kate Kennedy at
firstname.lastname@example.org and 703-535-6260.
The Society for Human Resource Management (SHRM) is the world’s largest association devoted to human resource management. Representing about 260,000 members in over 140 countries, the Society serves the needs of HR professionals and advances the interests of the HR profession. Founded in 1948, SHRM has more than 575 affiliated chapters within the United States and subsidiary offices in China and India. Visit SHRM Online at
www.shrm.org or follow SHRM @SHRMPress.
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