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.
One key change
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, and
- 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, and
- 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. Here goes:
- 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.
Got that? Good luck.
The EEOC also has posted a FAQ page on its website. You can find it here.