Recently, I got into a friendly debate with another attorney concerning the use of background checks & the EEOC’s Guidance Criminal Background Checking on it. I thought that this discussion & debate might be worth posting.

Attorney Ina R. Silvergleid, owns A Bridge Forward LLC, Legal Pathways to a Brighter Future. We debated whether employers can rely on conduct underlying an arrest or charge when making an adverse employment decision (e.g., not to hire, demotion, termination). Most states don’t allow employers to use a person’s arrest record when making adverse employment decisions, but the EEOC permits the use of the person’s underlying conduct. My advice to employers is go ahead & use underlying information when obtainable from credible & reliable sources. Ina’s advice is to not use such information because it’s unreliable.

Per the EEOC’s guidance, I believe that so long as an employer has a good faith & reasonable basis for believing that an employee or job candidate engaged in questionable behavior, then the employer can take adverse action based on the employee’s conduct alone, regardless of whether the person was arrested or not. The employer may learn from media reports or hearsay that the person got into some sort of trouble that may or may not have led to their arrest. So long as the employer obtained this information through legal means, & has a good faith & reasonable basis for believing that the employee or candidate behaved that way, the employer is protected for taking adverse action.

On the other hand, Ina is “of the opinion that an employer would be in violation of the Illinois Human Rights Act, 775 ILCS 5/2-103, which prohibits employers from making an adverse employment decision based on a record of an arrest, unless the employer has proof that the individual ‘actually engaged in the conduct’ for which s/he was arrested. The EEOC’s ruminations on the use of arrest and conviction information is not part of a regulation.  Thus, courts don’t have to give any weight to its guidance. While I am not suggesting there is no possible scenario where an employer might uncover credible evidence that the individual did engage in the underlying conduct, short of a plea agreement or finding of guilt, I would be very wary about encouraging an employer to act as a private investigator.”

The Illinois Department of Human Rights has no similar guidance although under Illinois law an arrest record can’t be used to make an employment-related decision, especially an adverse one.

I think that the difference in our perspectives relates to the weight that EEOC advice has over business & over the Illinois Human Rights Act. Although Ina is technically correct that the EEOCs guidance isn’t accepted as law, it still is persuasive, especially when there’s no contradictory statements from agencies like Illinois Department of Human Rights (which administers IL’s Human Rights Act).

Moreover, when an employer learns of deviant behavior from reasonably credible or reliable sources, what’s the employer to do, ignore it? No, that information is fair game & serves to insulate the employer from a bad hire.