About one year ago, on April 25, 2012, the EEOC issued revised enforcement guidelines on the use of criminal records in hiring decisions in compliance with Title VII of the 1964 Civil Rights Act. The big deal in the revisions was the recommended use of individualized assessments (IA) in hiring situations where a criminal record history might otherwise exclude an applicant (see our May 2012 post on the EEOC Guidance) from further consideration for employment.
A cottage industry has arisen for law firms trying to interpret these new guidelines in the absence of decisive court rulings. The essential problem with IA is that hiring managers are being asked to make objective judgments on applicants based on individual case factors where criteria are necessarily subjective.
Nevertheless, companies should establish clear and consistent policies for cases where individualized assessments are indicated. Not doing so may in itself create a liability – and a documented compliance schema will be useful in defense against some kinds of Title VII charges.
Why the EEOC Recommends Individualized Assessments
The central aim of the EEOC is to prevent discrimination in hiring against protected classes including race, national origin, sex, or religion. As one element in achieving this outcome, the EEOC seeks to ensure that applicants’ exclusions due to criminal conduct are both job-related and a business necessity rather than because the applicant is a member of a protected group.
The incidence of arrests and convictions is much higher among blacks and Hispanics than among whites. Therefore, the EEOC reasons, criminal background checks may exclude individuals from protected groups disproportionately. This is referred to as “disparate impact” where your racially neutral business process systematically discriminates against a protected group regardless of your business intent.
To guard against this form of discrimination, the EEOC recommends individualized assessments to drill deeper into the information about applicants who might be excluded by a criminal background check.
What is an Individualized Assessment?
Although individualized assessment was not a new concept, the EEOC went further than before in making it an important element of compliance. If a background check for an applicant indicates they have arrest or conviction records, an individualized assessment is recommended. Regarding arrest records, which are not conclusive evidence of wrong doing, it is especially important to give the applicant an opportunity in an individualized assessment to explain the circumstances of the arrest.
Where individualized assessments are appropriate, the so-called Green Factors (from the 1977 Green v Missouri Pacific Railroad case) that test whether an employment practice is job-related and a business necessity also indicate the broad outlines of the assessment. The factors 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 job held or sought.
Sometimes it is easy to connect the nature of an offense with the nature of the job. No one would argue it is reasonable to hire someone convicted of vehicular manslaughter a few months ago as a bus driver, and the EEOC recognizes that in such cases the conviction is sufficient to deny employment without the need for an individualized assessment. However, one should tread lightly here and with the advice of competent legal counsel.
But in more difficult cases, you need to establish a process that allows you to reach a reasonable conclusion about an applicant. Writing in Martindale, Holly Cheong of Snell & Winter LLP provides an outline of the process:
- Notify the applicant that he or she is being screened due to criminal activity.
- Give the applicant a chance to respond.
- Provide the applicant a full explanation for the decision not to hire if that is the decision.
Within this process, evaluate the applicant’s background and circumstances more thoroughly. Some of the elements you might consider include:
- The seriousness of the criminal activity with respect to risk in the prospective job.
- How much time has passed since the applicant was involved in a criminal activity.
- Whether the applicant has held similar jobs successfully in the past, or has had a sequence of jobs with long unaccounted breaks between.
- Evidence that the applicant has made good faith efforts to reform, e.g., through school or training or rehabilitation.
- Whether the applicant has references that substantiate dependable character.
When Should an Employer Conduct an Individualized Assessment
We do not recommend doing an individualized assessment for every applicant whose background check turns up a criminal record. If a scan of the background check results using the Green Factors indicates that the infraction was so minor, so far in the past without repetition, or so irrelevant to the job at hand that the applicant would not be rejected because of the criminal activity, no further investigation is warranted.
However, if you decide to exclude an applicant because of a criminal background check, we recommend doing an individualized assessment. Establish a policy to operationalize the process in the previous section, and initiate it as soon as possible. If you are hiring frequently or in large numbers at a time it is obviously important to have a routine that simplifies the process, but it is important for compliance to be able to show that the process produces valid outcomes.
Individualized assessments are a challenge for organizations. Over time, we hope the law or court cases add more clarity to the process. For now, it is important to conduct individualized assessments when appropriate to ensure your organization is in compliance with the revised EEOC guidelines.