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Employers Should Beware of Blanket Background Check Policies When Hiring
According to Fisher & Phillips Attorneys.

Dallas, TX, August 24, 2012 --( Is the Equal Employment
Opportunity Commission's guidance on the use - or non-use - of
background checks in the hiring process the new version of Don't
Ask, Don't Tell?

Equal Employment Opportunity Commission

EEOC n abbr (US) (= Equal Employment Opportunities Commission) → comision que
investiga discriminacion racial o sexual en el empleo now recommends that employers completely
avoid asking any
questions about criminal convictions on job applications. According to according to
1. As stated or indicated by; on the authority of: according to historians.

2. In keeping with: according to instructions.

3. Paul Lanagan of the Dallas office of Fisher & Phillips, a national
labor and employment law firm, the EEOC's position puts every
employer in an impossible Catch-22: run the background check and risk a
potential discrimination lawsuit or forego this procedure and risk
exposing the company to potential liability for negligent hiring Negligent hiring is a cause of action
in tort law that arises where one party is held liable for negligence because they placed another
party in a position of authority or responsibility, and an injury resulted because of this placement.
liability based on other tort theories.

“The agency bases its argument on statistics that tend to
show people of certain races and national origins are disproportionately
arrested and convicted of crimes,” said Lanagan.
“Therefore, blanket policies against hiring anyone with a
criminal background, without consideration of the specific circumstances
involved, runs afoul of a*foul of
1. In or into collision, entanglement, or conflict with.

2. Up against; in trouble with: ran afoul of the law. Title VII, according to the EEOC.”

Title VII of the Civil Rights Act of 1964 prohibits employment
discrimination based upon race, color, religion, sex and national origin
and is the most widely-applied anti-discrimination statute in the

“Employers are well-advised to review their current
policies carefully and be prepared to provide the EEOC with specific
reasons about why the information uncovered in a background check is
'job related and consistent with business necessity' which is
the standard for defending such a practice,” stated Lanagan.
“This process necessarily requires a thorough review of job

So how can employers utilize a hiring process that includes
background checks but still complies with Title VII? The new guidance
from the EEOC has left many important questions unanswered, such as:

Can criminal history be requested on a job application?

Employers should only inquire about convictions that are job
related and consistent with business necessity. It's important to
also include language that states that a conviction will not necessarily
preclude employment.

When should criminal background checks be used?

The EEOC recommends that employers eliminate criminal background
checks altogether. However, one approach to impact the least number of
applicants, and therefore limit the risk of liability, is to make an
offer of employment to the final candidate contingent on Adj. 1. contingent on - determined by
conditions or circumstances that follow; "arms sales contingent on the approval of congress"
contingent upon, dependant on, dependant upon, dependent on, dependent upon, depending on,

contingent successful
completion of a criminal background check.

* Can an applicant be excluded based solely on an arrest?

The EEOC guidance is clear that exclusion based solely on an arrest
record leaves employers open to claims about violation of the
anti-discrimination statute. Employers who are concerned about pending
arrests should conduct an independent investigation. If the
investigation shows that an arrest is job related and exclusion is
consistent with business necessity, refusal to hire is likely

“As the EEOC intends to increase enforcement of systemic
discrimination in the next few years, it would behoove be*hoove
v. be*hooved, be*hoov*ing, be*hooves
To be necessary or proper for: It behooves you at least to try.

To be necessary or proper. employers to
review and revise their background check policies to ensure they are
consistent with the EEOC guidance, but still protect the company from
other potential legal liability for failing altogether to perform a
check,” said Lanagan.

About Fisher & Phillips LLP LLP - Lower Layer Protocol (

Fisher & Phillips LLP represents employers nationally in labor,
employment, civil rights, employee benefits and immigration immigration, entrance of a person (an
alien) into a new country for the purpose of establishing permanent residence. Motives for
immigration, like those for migration generally, are often economic, although religious or political
factors may be very important. matters. The
firm has more than 275 attorneys in 27 offices. Founded in 1943, it is
one of the largest U.S. law firms to concentrate its practice

exclusively upon representation of employers in labor and employment
matters. In addition to the Dallas office, the firm has offices in
Atlanta, Boston, Charlotte, Chicago, Cleveland, Columbia, Denver, Fort
Lauderdale, Houston, Irvine, Kansas City, Las Vegas, Los Angeles,
Louisville, Memphis, New England, New Jersey, New Orleans, Orlando,
Philadelphia, Phoenix, Portland, San Diego, San Francisco, Tampa, and
Washington, D.C.


Contact Information:

Fisher & Phillips LLP Dallas

Denise Hodges


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