A Strategy for Validating Background Checks Could Save Employers from Legal Exposure

US employers’ widespread use of criminal background checks (CBCs) had received relatively few legal challenges until 2012. This changed when, given racial disparities pervasive in the criminal justice system, the US Equal Employment Opportunity Commission (EEOC) released enforcement guidance on CBCs’ potential to discriminate against certain racial minorities under Title VII of the Civil Rights Act. Several high-profile lawsuits and millions of dollars in penalties ensued.

Employers seeking to avoid financial and reputational damage will increasingly need to “validate” the use of CBC screenings in hiring procedures to demonstrate they are “job related… and consistent with business necessity.” Yet common validation strategies do not easily apply to CBCs. And since most cases involving these checks settle before going to trial, few published court decisions exist to offer guidance.

What can companies do to help validate CBCs and avoid legal exposure?