A Summary of the Revised EEOC Guidance

The argument is that individuals of certain national origins and/or races are arrested and convicted more often than other national origins / races. The EEOC’s concern is that the use of background checks may create a “disparate impact” under Title VII of the Civil Rights Act of 1964 to individuals in these groups.

The impact to employers:

1. The EEOC issued their recommendations and “Guidance” on what employer’s shall do to address this concern

1. According to the Guidance, employers must show how a criminal offense to be used in a hiring decision is “job-related” and a “business necessity”
2. The EEOC offers two examples of how an employer will “consistently meet the ‘job related and consistent with business necessity’ defense,” only one of which would need to be followed.
   1. Validation Study – using the approaches set forth under the Uniform Guidelines on Employee Selection Procedures the employer “validates” the issue of the criminal offense for the position being applied. This most likely will not be used often as:
      1. This is very costly
      2. This is very time consuming
   2. Targeted Screen that includes a personal assessment– The employer shall consider the three “Green factors” and conduct an individualized assessment.
      1. Green Factors:
         1. Nature and gravity of the offense
         2. The time that has passed since the offense / completion of sentence
         3. Nature of the job held or sought
      2. Personal Assessment
         1. The facts or circumstances surrounding the offense or conduct;
         2. The number of offenses for which the individual was convicted;
         3. Older age at the time of conviction, or release from prison;
         4. Evidence that the individual performed the same type of work, post conviction, with the same or a different employer, with no known incidents of criminal conduct;
         5. The length and consistency of employment history before and after the offense or conduct;
         6. Rehabilitation efforts, e.g., education or training;
         7. Employment or character references and any other information regarding fitness for the particular position; and
         8. Whether the individual is bonded under a federal, state, or local bonding program.

Best Practices:

• Eliminate policies or practices that exclude people from employment based on any criminal record.
• Train managers, hiring officials, and decision makers about Title VII and its prohibition on employment discrimination.
• Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct.
  • Identify essential job requirements and the actual circumstances under which the jobs are performed.
  • Determine the specific offenses that may demonstrate unfitness for performing such jobs.
  • Determine the duration of exclusions for criminal conduct based on all available evidence and include personal assessment.
  • Record the justification for the policy and procedures.
  • Note and keep a record of consultations and research considered in crafting the policy and procedures.
• Train managers, hiring officials, and decision makers on how to implement the policy and procedures consistent with Title VII.
• When asking questions about criminal records, limit inquiries to records for which exclusion would be job related for the position in question and consistent with business necessity.
• Keep information about applicants’ and employees’ criminal records confidential. Only use it for the purpose for which it was intended.

Click here for a full summary of the EEOC Guidance from Accurate Background.