The guidelines are supposed to safeguard employees from workplace discrimination, however, many argue that they are doing a great disservice to employers. Not only has there been significant uncertainty about what is considered to be justified pre-employment screening, but employers are now caught between two bleak options. They either risk EEOC violations by thoroughly screening potential employees, or limit their screening and increase the risk for employing a criminal. Either may have devastating results for their company.
Rep. Tim Walberg, R-Mich., has said that these guidelines not only hinder the employer but could have a negative impact on the overall community: "In certain occupations, a background check of prospective employees is critical to public safety." These concerns are especially apparent when hiring employees that will be entering private residences or working with children.
Additional complaints were voiced concerning inconsistencies in the EEOC's approach to investigation and enforcement of discrimination allegations. This seems to be exemplified by recent losses during court cases where the EEOC has challenged an employer's use of background screening.
Though nothing in the 2012 guidelines prevents employers from conducting criminal records screening during pre-employment, they are supposed to distinguish instances where such screening is appropriate. Unfortunately, confusion and uncertainty are marring the outlined path and have created an unstable foundation for business looking to hire responsibly.