It’s been four years since the
Equal Employment Opportunity Commission (EEOC) published guidance for employers who consider job seekers’ arrest and conviction records in hiring decisions, but many organizations still aren’t sure how to conduct the individualized assessments required by the guidance.
The 2012 EEOC guidance discouraged employers from excluding all job seekers with criminal records and recommended that, in addition to assessing each criminal record hit for job-relatedness and business necessity, employers give applicants the opportunity to explain or resolve a criminal history uncovered in a background check.
“The individualized assessment requirement was one of the hardest things to understand about the guidance,” said Pamela Devata, a Chicago-based partner in the labor and employment practice group of Seyfarth Shaw and one of the country’s foremost experts on the Fair Credit Reporting Act (FCRA), which regulates employment screening.
The goal of the EEOC guidance was to help people in demographic groups with higher incarceration rates get jobs and not be automatically excluded from the candidate pool due to a criminal history.
“Basically, an individualized assessment process allows a candidate to provide evidence that a conviction is not related to his or her ability to perform a job and allows employers the opportunity to determine whether a criminal record is specifically related to the position being applied for,” said Bret Jardine, executive vice president and general counsel for First Advantage, a global background screening company headquartered in Atlanta. “Unfortunately, the guidance provides little to no direction around how to set up a standardized process for performing individualized assessments.”
A 2015 survey from First Advantage showed that about half of the 1,337 employers polled were not satisfied with how they conduct individualized assessments. Many were concerned with how the process is communicated internally to HR and hiring managers (40 percent), how the process is communicated to applicants (31 percent), and how the process is documented (31 percent).
‘Green Factors’ Plus
Devata explained that the EEOC expects organizations to first apply the “Green factors” when assessing applicants’ criminal records and job-relatedness.
These are components identified in the 1975 8th Circuit Court of Appeals decision in
Green v. Missouri Pacific Railroad and include taking into account:
- The nature and gravity of the offense.
- The time that has passed since the offense and/or completion of the sentence.
- The nature of the job sought.
After considering these factors, employers are supposed to conduct an individualized assessment, case by case, for each individual and each conviction. While the guidance is not law and can’t be enforced by law, “if you don’t follow it, you could be ripe for an investigation by the EEOC or plaintiffs’ counsel,” Devata warned. She noted that individualized assessments are not required for all jobs. For example, a day care provider can screen out applicants with past convictions for child molestation without assessing the applicant further.
Tips for Conducting Individualized Assessments
First, employers need a written policy that sets the base line for how its individualized assessment process will take place. “This is tremendously important and is exhibit A in any defense of a lawsuit charging you with discrimination,” Devata said. It’s also a great internal training tool, she added. Nearly three-fourths of the respondents to the First Advantage survey said they have a written policy regarding the use of criminal history information in background checks during the hiring process.
Second, employers should create a position-specific matrix to match specific kinds of criminal records with job disqualifiers and ensure consistency in application.
“While matrices should not be used as an automatic disqualifier in most cases, with the exception generally being regulated industries, they can be useful tools in ensuring consistent application across a business,” Jardine said. “For example, if there is a minor crime that you believe is not job-related to a specific position, that can be listed as a ‘pass’ or ‘clear’ on a matrix. If there are other crimes that you believe may be job-related, however, those could be highlighted as ‘needs review’ and escalated to a centralized authority.”
Basically, the matrix should produce a documented, consistent rationale behind the types of offenses that would or would not preclude someone with a criminal history from filling a particular position. But a one-size-fits-all matrix with blanket disqualifiers for criminal records could lead to disparate impact claims, Devata counseled.
Another important aspect of conducting compliant individualized assessments is ensuring consistency across business units and locations. “You may want to consider limiting the people involved to those who need to know,” Jardine said. “Many employers are creating a centralized review process so that the practice becomes more efficient, generally faster and promotes consistency throughout your organization.”
Asking for Applicants’ Information
Companies will need to provide an efficient way for applicants to submit information about their criminal history. At what point in the process employers do this will depend on where they are located. Some jurisdictions’ “ban-the-box” laws prohibit asking about any criminal history until a conditional offer of employment has been made.
Some companies reach out to candidates via the telephone, while others allow candidates to provide information when they solicit a criminal history self-disclosure after a conditional employment offer. Still others ask the candidate to provide that information during the pre-adverse action stage.
Devata suggested using a questionnaire in place of the usual checkbox asking about criminal history. The questionnaire would collect all of the information recruiters or HR would need to know to make an individualized assessment decision, such as information about the offense, the age of the candidate at the time of the offense, any rehabilitation efforts undergone and what types of work the candidate has done since the offense. The questionnaire can go out with the offer of employment, preventing any further lag time in the hiring process, Devata said.
Lastly, don’t forget to train the people making hiring decisions. “Anyone evaluating criminal history should absolutely have read and understand the EEOC guidance and any relevant ban-the-box laws,” Devata said.
Roy Maurer is an online editor/manager for SHRM. Follow him @SHRMRoy