Criminal background checks in the hiring process make it more difficult for former offenders to
obtain employment. As a result, many former offenders end up underemployed or unemployed
altogether and this can lead back to a life of crime. This obstacle to finding gainful employment
is a harm, and this harm directly follows from a former offender’s criminal conviction. The harm
can therefore be thought of as part of the punishment imposed on criminal offenders. However, I
do believe that criminal background checks can still be used as a screening tool for hiring
Regarding the consideration of criminal records, discrimination may occur when an employer
relies on race- or ethnic-based stereotypes related to criminal behavior. Discrimination may also
occur when an employer fails to consistently apply the same policy for criminal background
checks to all similarly situated employees or applicants. For example, if an employer only
requires criminal history background checks for all applicants of a specific race or religion, this
employer is engaging in a discriminatory practice. Additionally, if between two similarly
situated candidates with criminal backgrounds the one who belongs to a protected class is
rejected on the basis of his or her criminal background while the other candidate is not, then the
employer may be liable. This points to the possibility that the applicant’s criminal background is
just a cover for the employer’s bias.
To prevent liability under Title VII, employers should treat all employees and job applicants
equally. And, as the EEOC Guidance and enforcement actions make clear, this fair and equal
treatment applies to the request and consideration of criminal records. Policies concerning the
request and use of criminal histories should be clear and communicated to all hiring managers
and supervisors.
Although it is legal for employers to review the credit history of applicants under certain
circumstances, I feel that this should only be done with caution and after determining that credit
history is directly related to the job and necessary for business purposes. They do, in fact, have
the potential to create self-fulfilling prophecies. Credit reports suffer from high rates on
inaccuracy, credit histories have not proven to be a valid predictor of job performance or
trustworthiness, the use of credit histories in hiring creates a catch-22 for unemployed job
applicants and thus hampers economic recovery for millions of Americans and, most
significantly, credit background checks disproportionately impact certain minority applicants.
The EEOC Guide to Pre-Employment Inquiries suggests employers avoid certain inquiries of job
applicants, including credit history questions, as they could potentially expose the employer to
liability for disparate impact discrimination.
Ref:
“Fair Employment Practices Manual, EEOC Guide To Pre-Employment Inquiries 8a” (1992).
EEOC Employment Tests And Selection Procedures, Retrieved from:
Http://Www.Eeoc.Gov/Policy/Docs/Factemployment_Procedures.Html
HRMT602 | LESSON 4
Negligence — Part 1
LESSON TOPICS:
•
•
•
•
Employer Negligence
Employer Negligence through Notice
Criminal Checks
Credit Checks
INTRODUCTION
In the first three lessons of this course, we exhaustively reviewed the dynamics of discrimination
laws in the United States, their proscriptions, and their exceptions. Provided that a job applicant
makes it beyond these hurdles, and the employer in question is preparing to offer him or her
a job, there are several things that HR professionals should know in order to avoid liability in
hiring.
Employer Negligence
The most liability that an employer might bear in the employment context is in the form of
negligence, either directly or vicariously. There are other potential grounds for liability in the
employment environment, including contract-related matters. However, as the vast majority of
employees are not hired subject to a contract, the following discussion will focus mainly on
concerns related to employment in the “at will” context.
In order to participate in an informed discussion about employment negligence, one must first
understand the definition of negligence. Negligence in the legal arena concerns unintentional
harm that results from a failure to use the care that would be expected of a reasonable person
under the same circumstances (Negligence, n.d.).
Negligence is usually a civil tort (wrong) but may rise to the level of criminal culpability if the
conduct of the tortfeasor is sufficiently reckless or severe. Generally, negligence has four key
elements.
Negligence is usually a civil tort (wrong) but may rise to the level of criminal culpability if the
conduct of the tortfeasor is sufficiently reckless or severe. Generally, negligence has four key
elements.
4 ELEMENTS OF NEGLIGENCE
1ST: DUTY
In order for someone to be guilty of negligence, he or she must have first had a duty
of care. An example will serve to illustrate. Suppose a passerby, Steve, comes across
a person in peril, Bob. Let us say that Bob is suffering a heart attack and is in need of
immediate medical attention. Now, as heartless as it might be for Steve to decline to
help Bob (even by simply calling 911), generally no such duty exists for Steve, and
thus there can be no negligence.2 In the employment context, employers almost
always have a duty to maintain a safe and secure environment for their employees
and customers.
2ND: BREACH
In addition to the existence of a duty, the accused must have also breached his or
her duty. Let us change the facts of the above example and suppose that Steve is a
server in a restaurant and Bob is his customer. Under these circumstances, Steve
probably does have a duty to help Bob, but if he fulfills that duty, say, by calling 911,
then there obviously can be no negligence. This element of breach is the focus of
many, if not most, negligence disputes.
3RD: DAMAGE(S)
In order for someone to be found guilty of negligence, the breach of whatever duty is
in question must have resulted in damage of some kind. If Steve fails to help Bob, but
Bob recovers from his heart attack on his own with no harm of any kind, he cannot
successfully sue Steve for negligence. Harm must have been suffered. Note that
damage need not be physical in nature, though. Bodily injury is of course an intuitive
example, but emotional harm and even financial damage (loss of property, value, or
earnings) will suffice for damage.
4TH: CAUSATION
The final element of negligence requires that the breach of duty on the part of the accused be
both the direct and proximate cause of the damage in question. Keeping with our ‘Steve and
Bob’ example, suppose that Steve fails to help Bob, but someone else in the restaurant attempts
to help Bob by calling 911. Emergency services arrive and transport Bob to the hospital by
ambulance, but along the way the ambulance is in a vehicle accident that badly injures Bob
(injuries unrelated to Bob’s earlier heart attack). It is unlikely that Steve would be found
responsible for the injuries that Bob sustained as a result of the ambulance accident, because the
accident was not foreseeable by Steve and was a superseding and intervening cause of said
injuries.
Employer Negligence through Notice
Now that we have a clear understanding of what negligence is and is not, we can discuss the
ways in which employers may be found negligent for the actions of their employees. There are
several ways in which such claims can be established, but two of the most common are through:
•
Proof that an employer knew or had reason to know that an
employee would behave in a negligent manner
•
Vicarious liability for the actions of employees acting within
the scope of their employment
The first means of establishing employer negligence is through proving that the employer either
actually knew, or if not, should have known (this is a legal concept known as constructive notice)
that an employee had a propensity for behaving in a negligent way.
This concerns the very complicated and controversial area of employee
screening. Generally, there are two types of employee screening tools: those which look at
applicant historical information, and those which look at current (at the time of application)
applicant circumstances.
This lesson will focus on the two most common types of applicant history audits that have been
established as permissible for employment purposes, provided that they are narrowly tailored to a
specific purpose and do not infringe on Title VII protections. Those two types are criminal and
credit checks. Other types of current status applicant assessments, such as physical fitness or
substance use, may also be permissible. These will be discussed in future lessons.
Criminal Checks
In 2012, the EEOC published a comprehensive set of guidelines for the propriety of criminal
checks used in employment decisions (Spoden, 2013). Generally, the guidelines preclude any use
of background checks that amount to either disparate treatment or disparate
impact discrimination (see Lesson One). However, this becomes a very difficult issue for many
reasons.
First, criminal data may not be accurate or complete, depending on whether an employer relies
on public or private data sources. Second, criminal statistics are known to have disproportionate
correlations with traits like race, such that a blanket exclusion of any applicants with criminal
records would have the effect (à la disparate impact) of discrimination based on a protected
class. To overcome a presumption of discriminatory intent, an employer would have to establish
business necessity for such criminal checks and exclusions.
EEOC FACTORS NEEDED TO ESTABLISH BUSINESS NECESSITY (2012)
•
•
•
The nature and severity of the criminal record in
question
The amount of time that has passed
since the conviction and/or incarceration, if applicable
The nature of the job for which the applicant is
applying
Employers are encouraged to design criminal background check efforts with the utmost scrutiny
to what is appropriate for the circumstances. If an applicant committed a crime 20 years prior to
the time of application and has had an otherwise clean record since, then unless the former crime
was of a most severe nature (e.g. murder), such history should be given little weight in
employment decisions. If an applicant’s past involves criminal vehicular behavior (such as
criminal DUI), but the job in question does not involve any driving, such an applicant should not
be excluded. Endless such hypotheticals could be imagined; the key is to use careful and
purposeful reasoning in making such decisions.
Credit Checks
With respect to credit checks, these hiring tools are permitted under the Fair Credit Reporting
Act (Federal Trade Commission, 1970). However, several states have enacted legislation
outlawing these practices. The reasoning behind such checks is the assumption that if an
employee is suffering from personal financial hardship, he or she might be more inclined to do
unethical or illegal things (such as stealing) in desperation. While this might appear a harsh
assumption on the part of employers, credit checks remain fair game (Guerin, n.d.).
Public policy concerns have emerged post-recession about the notion that these tools might be a
dangerous kind of self-fulfilling prophecy. One can imagine a vicious cycle wherein a lack of
income leads to financial hardship and poor credit history, and that poor credit history, in
turn, has the effect of limiting opportunities for future employment/income, and so on.
As with criminal background checks, if and when credit reporting is used for employment
screening at all, it should be done with great care and precision, so as to craft a substantial nexus
between exclusionary criteria and job requirements. If a job entails no access to money or other
valuables that could be easily misappropriated, then credit history alone is probably an
insufficient reason to exclude an applicant.
Conclusion
In this lesson, we introduced the concept of employer negligence and explained the two most
common tools which employers use to avoid liability based on applicant history: the criminal
check and the credit check. In next week’s lesson, we will discuss the tools that HR professionals
may employ for screening employees based upon current circumstances.
This week's lesson discussed criminal and credit checks as pre-hire screening policies. Consider and
comment on the following questions:
1. Given that which we know about the limitations in the reliability of criminal background
checks, do you still agree with their use as a screening tool for hiring purposes? What are
your thoughts on the disparate impact discrimination concern resulting from correlations
between criminal records and protected classes such as race? Are the EEOC's guidelines
in response to this issue adequate recourse? Why or why not?
(Note: Disparate impact occurs when policies, practices, rules or other systems that appear to be
neutral result in a disproportionate impact on a protected group.)
2. Given the discord among states about the propriety of credit checks, what are your
thoughts on their use? Do they have the potential to create 'self-fulfilling prophecies' of
the kind to which this week's lesson alluded? Why or why not?
Lesson reference:
APUS (n.d.) HRMT602 | LESSON 4
Other references you can use as a guide:
Equal Employment Opportunity Commission (2012). Consideration of arrest and conviction
records in employment decisions under Title VII of the Civil Rights Act of 1964. Retrieved
from http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm
Federal Trade Commission (1970). Fair Credit Reporting Act 15 U.S.C. § 1681. Retrieved
from https://www.consumer.ftc.gov/sites/default/files/articles/pdf/pdf-0111-fair-credit-reportingact.pdf
Guerin, L. (n.d.) Running credit checks on job applicants. Nolo. Retrieved
from http://www.nolo.com/legal-encyclopedia/running-credit-checks-applicants-35457.html
Negligence (n.d.) Cornell University Legal Information Institute. Retrieved
from https://www.law.cornell.edu/wex/negligence
Spoden, M. C. (2013, April 20). Walking a tightrope: EEOC guidance to avoid negligent
hiring. Construction Executive. Retrieved
from https://enewsletters.constructionexec.com/managingyourbusiness/2013/04/walking-atightrope-eeoc-guidance-to-avoid-negligent-hiring/
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