Small Business Bothers – Is EEOC Guidance Too Confusing to Follow?

By its very nature, something called guidance should offer just that – guidance. But some small business owners are claiming that the Equal Employment Opportunity Commission’s ‘guidance’ on background checks is too confusing to follow.

The issue stems from a 55-page, 167-footnoted explanation to Title VII of the Civil Rights Act of 1964. In this article from The Business Journals, Todd McCracken, president of the National Small Business Association, says the EEOC’s guidance is so complicated and confusing that it discourages small businesses from relying on criminal background checks.

The debate started after some groups, the NAACP among them, claimed the practice of using criminal background checks disproportionately affected minorities chances of getting jobs since minorities are convicted of crimes at higher rates than non-minorities. Called disparate impact, it exists when an employer has a policy or practice that has a discriminatory effect on theses protected classes:

  • race, sex, religion, genetic information, disability, color, national origin, citizenship, age, pregnancy
  • some states also offer protection for sexual orientation, weight, marital status

However, disparate impact is a theory based on statistical analysis. Someone can be accused of disparate impact even if they had no intention of mistreating minorities or other protected classes. Perhaps, a more telling measurement of discriminatory practices is disparate treatment, where an employer intentionally treats someone different and they’re considered a protected class. Just last month, the U.S. Supreme Court agreed to take up a challenge to the disparate impact theory.

We explored disparate impact, disparate treatment and other situations that lean toward discrimination in this post. It’s a great resource for basic information about what discrimination can look or feel like in a workplace.

When the EEOC issued the guidance in 2012, it was trying to ensure employers didn’t reject candidates solely because of criminal convictions. The NAACP for one claimed that other factors should be considered:

  • type and gravity of the offense
  • amount of time passed since the conviction
  • nature of the work the applicant would be doing

Victim advocates, obviously, take a different stance and push for criminal background checks to remain an important part of the screening process. They claim the EEOC was overzealous in trying to protect people from employment discrimination and that background checks have been ‘demonized’ to the point where employers are afraid to use them and are therefore risking the safety of the current workforce and clients.

Active Screening understands the arguments about guidance. We know how confusing hiring can be and we’re here to help you navigate the screening process so you can feel confident that you’ve done your best to securely and safely bring on a new employee.

We believe that workplace safety is a high priority for all businesses. We believe that criminal background checks are an important piece to thoroughly vetting any candidate. We believe that other screening processes like substance abuse testing, credit verification and driving records should also be available to employers. We believe that you have your employees and applicants best interests at heart.

Our Director of Compliance and our Criminal Research Manager both have more than 15 years in the employment screening industry so bring your questions about guidance directly to one of them. Give us a call today 1-800-319-5580.


This entry was posted in Background Screening, General, Human Resources and tagged , , , , , , , by Patricia Carlson. Bookmark the permalink.

Patricia Carlson is a content writer who specializes in B2C and B2B inbound marketing. She blogs regularly for clients about the background screening and finance industries, and generates newsletters, white papers and email campaigns for a variety of businesses. Patricia also produces a heavy rotation of editorial material for home design, law enforcement, and family magazines. She’s been writing professionally for more than a dozen years, and for Active Screening for more than two of those. Check out LinkedIn for a roster of Patricia's clients and links to published works. When she’s not interviewing sources or researching trends, she’s living a fast-paced Florida life questioning the antics of her two young children, partner and mischievous cat. Patricia loves to talk tennis and TV on Twitter - give her a shout @pattycfreelance.
Active ScreeningBarbara S.
Healthcare Industry

"Here at Holland Hospital, we have been extremely pleased with Active Screening. The report results come back quickly, usually within 24 hours or less.  The staff at Active Screening is easy accessible, knowledgeable and responds to our questions promptly."

Active ScreeningLynn C. Staffing Industry

"Benton Mobley has been and remains my Main point of contact at Active Screening from the beginning; so aside from the comfort of dealing with the same person all these years, there is the most important fact of all;  customer satisfaction. Benton knows the business like the back of his hand; and that is what we need in our fast paced industry of staffing. He is the all-time BEST!  MY employer, Leslie, believes in the notion that great service deserves to be rewarded, so we are here for the duration.We get immediate and personalized attention for any and all concerns we need addressed, and in the staffing industry, this is vital."

Active ScreeningCayce R. Education Industry

"My experience working with Active Screening for our background check process has been very positive.  The reports are almost always completed in a very timely fashion. The information reported appears to be very thorough and accurate.  On the rare occasions that we have questions or problems, the customer service team is always very quick to respond and resolve the issue.  Overall, I am very pleased with the service I receive from Active Screening."

Active ScreeningCraig H. Staffing Industry

"Your customer service is excellent.  The turn around time on background checks is quite fast.  Excellent work.  I haven't had a single problem."

Active ScreeningJackie C. Education Industry

"I wanted to thank you and your staff for being so patient and working so diligently with the Human Resources staff during our recent endeavor to process all of our work study students through background screenings.  We have never had to process so many requests within such a short period of time before, but thanks to you and your staff we made it. Again thank you, we made a good choice in selecting Active Screening."

Active ScreeningLindsey W.  Financial Industry

"I wanted to share my appreciation for your wonderful service...switching background screening companies could have been a stressful task, but your company made the transition seamless. Your website was extremely easy to navigate and the turn around time has been great. I appreciate when information is missing or entered incorrectly during ordering, your company notifies me right away to ensure that my error does not hold the reports results, causing us a delay in hiring an individual...Active Screening has been great to us and I would definitely refer them to others."

Active ScreeningTerry S. Property Management

"Working with Active Screening over the last year and half has been a wonderful experience. They deliver fast and informative results at the best price. Their level of professionalism and the speed they respond to our issues is a benefit that any company can value from. I would highly recommend using Active Screening and their amazing team."

Active ScreeningYulesis D.  Staffing Industry

“Interactive Response Technologies (IRT) has more than 2,000 employees at multiple locations across the United States. IRT has been using Active Screening to conduct criminal background checks since 2006. During this time, Active Screening has consistently returned accurate reports, usually with less than 48 hours turnaround. If there are any problems or inconsistencies with the reports, their staff has called to notify us so that we can attempt to rectify the situation. The staff at Active Screening is always courteous and congenial over the phone. In our opinion, Active Screening is outstanding.”

Active ScreeningAndy N. Software Provider

 "Active Screening has helped us screen our applicants in record time for more than two years.... we are very impressed with the professionalism and speed with which their service team responds to our questions. They understand our needs and are a pleasure to work with. I highly recommend them."

Active ScreeningCassie J. Staffing Industry

"The Active Screening team is very informative; they provided a complete consultation on all the services, so I understood what I needed, and saved me hours and hours of my time learning the various services. Their reputation, as being on the cutting edge of employment screening best practices, certainly held true in this instance. The expertise they brought to the table was invaluable to our understanding of our applicants backgrounds. I highly recommend Active Screening to anyone with the task of screening large numbers of applicants and needing reliable customer support."

Active Screening

With over 20 years of law enforcement experience I can attest to the fact that the strongest predictor of future criminal behavior is a person’s criminal history. As the manager of campus safety at my church, I depend on Active Screening to provide a thorough assessment of every criminal history background check we request. For more than 3 years, Active Screening has been faithful to this task with timely, accurate and reliable service.

Active Screening

We have benefited from knowing that we are not exposing the communities we work with or ourselves to unnecessary risk. We continue to have a perfect record in that we have never had a serious incident with a trip participant causing harm or acting inappropriately with any community member or fellow team member- thank goodness!

Active Screening

I would highly recommend any association or organization who conducts background checks to use Active Screening. In addition to my involvement with WAHA, I am an officer in a corporation with over 500 employees who provide treatment, mental health, and correctional services for children and adolescents. Our company is mandated by law to do comprehensive background searches and I can say with the utmost sincerity that Active Screening product rivals that of any government or other private sector process.

Active Screening

We have used Active Screening and their solution VERITY to screen all our coaches and volunteers working with youth. The online system gives us an easy and cost-effective solution to collecting forms and payments from our applicants...and we simply login to view the results of who passed or failed. It's so easy....thank you Active Screening.