Conducting background checks on prospective employees is usually perfunctory. Racetracks must have trustworthy pari-mutuel clerks, horse transporters require drug-free drivers and pilots, and racing stables and farms need to make sure the people they hire have the appropriate character and temperament to work with animals.

However, recent decisions by the U. S. Equal Employment Opportunity Commission, coupled with its new and voluminous regulatory guidance, subject employers to increased legal risks whenever they use background checks to screen job seekers. Even when a business finds that an applicant has a felony conviction and turns down the individual for that reason, it may be vulnerable to an EEOC challenge. In one case, the EEOC is demanding that a company pay compensation to job aspirants who concealed their criminal records.

The EEOC’s reasoning is based on the concept of disparate impact, meaning that background checks discriminate against minorities because their criminal conviction and incarceration rates are considerably higher than for non-minorities.

EEOC actions indicate that a business in compliance with state employment law may still run afoul of federal law. For instance, a firm that provides security guards in Pennsylvania was targeted by the EEOC for excluding a twice-convicted felon, in spite of the fact that Pennsylvania law prohibits felons from working as security guards.

A racing-related business should be reasonably certain that it can defend using certain types of negative information in a job candidate’s past as an automatic disqualifier in hiring. The main concern is whether a conviction in a court of law is relevant to job performance. In making this determination, a company also needs to consider the applicant’s conduct since the incident. If the individual has no repeat occurrences over a significant period of time, then the employer must be especially circumspect about using a previous record as a basis for rejection.

Copyright ©2013 The Blood-Horse. Used with permission.

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