Kathleen Connelly

Attorney Kathleen Connelly

In a #Metoo-#Timesup world, should businesses add sexual harassment inquiries to their background checks on new hires?

Some HR websites advise it. A blog post at glassdoor.com, for instance, suggests employers “Talk to former employers and supervisors. Ask about workplace behavior and relationships. Inquire about reasons for leaving….”

But most companies have a policy of not discussing previous employees except to confirm their employment with the company. Also, some states have limits on background checks; in New Jersey, for instance, you can’t ask about criminal records in the first interview.

For attorney Kathleen Connelly, a partner at Lindabury, McCormick, Estabrook & Cooper, such inquiries raise concerns. “I’m not sure it’s appropriate for every employer, and I certainly don’t think it’s appropriate for every position,” Connelly said recently.

For one thing, she’s not sure how reliable information is from former supervisors or co-workers, who may have an agenda or simply didn’t like the person. Moreover, there are no assurances that the allegations of wrongdoing by the candidate were fully and properly investigated and deemed credible, especially when employers are more inclined to terminate alleged offenders without any due process to avoid negative internal and external blow-back.

For those employers who decide to dig deeper into job candidates’ background, however, she has two pieces of advice: have a written background check policy and be sure it is equally applied to all candidates applying for the position.

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Background check policies should identify the positions that will be subject to sexual harassment inquiries, the individuals that will be contacted, the questions that will be asked, and other information about how the background check will be conducted.

Employers must also resist the temptation to limit #Metoo background checks to male job applicants or other select groups, as this could leave the employer open to charges of discrimination or employing a double standard.

“If an employer is inclined to start casting the net a lot wider to secure other sources of information about an applicant’s sexual misconduct in the workplace, they must be sure that they employ that same wide net to any candidate that they have,” she said.

When it comes to an employer’s liability, Connelly thinks that as long as employers engage in due diligence, they will be covered. Employers who ask job candidates about workplace sexual misconduct and go through the standard background check should not face liability for negligent hiring or negligent retention as long as they didn’t know or have any reason to know about past sexual harassment.