The EEOC’s
recent guidance concerning employers’ use of criminal background checks on job
applicants comes down to two words: Individual assessment.
The bottom line
of the agency’s recently released “enforcement guidance”: Blanket policies that automatically
reject job candidates with criminal records are illegal.
The rationale:
Such policies have been found to have a disparate impact on minorities,
according to the EEOC.
The guidance
comes on the heels of a recent settlement between the agency and Pepsi Beverages,
which agreed to pay $3.13 million after EEOC investigation found that the
criminal background check policy formerly followed by Pepsi discriminated
against African Americans in violation of federal anti-bias laws.
The essence of
the guidance: Employers have to make hiring decisions on applicants with
criminal histories using three criteria. They are:
- The
nature and gravity of the offense or conduct
- The
time that has passed since the offense or conduct and/or completion of the
sentence
- The
nature of the specific position.
The new wrinkle,
however, is the agency’s “recommendation” that employers go through an
extensive “individual assessment” on each candidate.
And that could
mean a lot of headaches for HR. Here’s a list of the things EEOC says you
should consider:
- The
facts or circumstances surrounding the offense or conduct
- The
number of offenses for which the individual was convicted
- Age
at the time of conviction, or release from prison
- 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
- The
length and consistency of employment history before and after the offense
or conduct
- Rehabilitation
efforts (such as education or training)
- Employment
or character references and any other information regarding fitness for
the particular position
- Whether
the individual is bonded under a federal, state, or local bonding program.
There is one
(rather dim) bright spot here, however — if the applicant doesn’t cooperate by
providing the background information the employer seeks, the company can make
the hiring decision based on the information at hand.
The agency also
offers a rundown of suggested best practices for employers using criminal
background checks:
- Eliminate
policies or practices that exclude people from employment based on any
criminal record.
- Train
managers, hiring officials, and decisionmakers about the federal
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.
- Identify
the criminal offenses based on all available evidence.
- Determine
the duration of exclusions for criminal conduct based on all available
evidence.
- Include
an individualized 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 decisionmakers on how to implement the
policy and procedures consistent with the law.
- 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.
