by Brian Heatwole,
Vice President of Sales, S2Verify
Why Employers Should Pay Attention
On April 25, 2012 the Equal Employment Opportunity Commission (“EEOC”) released new guidance (“Guidance”) regarding acceptable uses of criminal histories acquired from background checks during the hiring process. These changes were based on the EEOC’s findings that “criminal record exclusions have a disparate impact” on African-American and Hispanic applicants.
The Guidance from the EEOC is not binding on employers, but is still very important as the EEOC will include this recent Guidance in its efforts to enforce Title VII. The EEOC zealously pursues claims of hiring discrimination and has commenced hundreds of investigations into allegedly illegal uses of criminal history. Earlier this year and before the new Guidance, Pepsi settled an EEOC hiring discrimination claim for $3.13 million. What has changed?
1. Conviction Inquiries: Employers should not ask about convictions on applications unless they are clearly job-related inquiries, e.g., on an application for a position at a day care it would be acceptable to inquire about convictions for child abuse.
2. Arrest Records: The EEOC has stressed that it does not consider arrest records to be job related or necessary when assessing applicants. This does not mean that arrest records are never useful, but employers will need sound justification for using them to exclude an applicant. In other words, employers cannot rely on the mere existence of arrest records when excluding applicants. Instead we advise employers to focus on specific reasons for each arrest and whether any record directly threatens the integrity for of the position for which the applicant applied.
3. New Job Related Assessment Factors: There is not a limitation on the employer’s ability to consider recent criminal records, nor is there a specific list of offenses that are or are not acceptable. Instead the EEOC has provided three factors for assessing criminal histories.
a. The nature and gravity of the offense or offenses (evaluating the harm caused, elements of the crime, and classification, i.e. felony or misdemeanor)
b. The time that passed since the conviction and/or completion of the sentence (checking this time period for signs of repeat offense)
c. The nature of the job held or sought (including specific duties, essential functions, and environment)
4. Individualized Assessment: If a potentially disqualifying criminal history is discovered after analysis using the three factors above, the EEOC recommends further individual assessment of each such applicant’s situation, using the factors below, unless the criminal histories are so clearly relevant to a position that further assessment is not necessary (Examples: exclusion of day care applicant convicted of violence against children, or pharmacy applicant convicted for drug dealing).
a. Facts or circumstances surrounding the offense or conduct;
b. Number of offenses for which the individual was convicted;
c. If the applicant is of an older age at the time of conviction, or release from prison;
d. Evidence that the individual has performed the same type of work, post conviction with the same or a different employer, with no known incidents of criminal conduct;
e. Length and consistency of employment history before and after the offense or conduct;
f. Rehabilitation efforts, e.g., education/training;
g. Employment or character references and any other information regarding fitness for the particular position; and
h. Whether the individual is bonded under a federal, state, or local bonding program.
Best Practices
• Eliminate policies/practices that exclude people from employment based on the existence of any criminal record;
• Develop narrowly tailored written policy and procedure for criminal record screening;
• 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;
• Train managers, hiring officials, and decision makers on Title VII, employment discrimination, and implementing policy consistent with Title VII;
• Identify essential job requirements and the actual circumstances under which the jobs are performed;
• Determine specific offenses that may demonstrate unfitness for performing such jobs;
• Identify criminal offenses based on all available evidence;
• Determine the duration of exclusions for criminal conduct based on all available evidence;
• Record the justification for your policy and procedures;
• Maintain record of consultations and research considered in crafting policy; and
• Keep information about criminal records of applicants and employees confidential
In light of the above, we believe our Customers will be best able to utilize background checks by carefully documenting the factors justifying use of criminal histories so that all third parties can easily determine that exclusion on that basis is fair under the circumstances of the individual and job.
