EEOC policy and the various Ban the Box statutes around the country share the common characteristic of requiring employers to adopt background screening procedures that are sensitive to individual-level circumstances. For example, the EEOC Guidance, which is important because Federal law pre-empts state and local statutes regarding discrimination, recommends using a so called, individualized assessment before excluding an applicant based on criminal history.
The fact that policy is emphasizing individual factors does not mean that employers must always treat every single applicant separately in order to show that exclusion is job-related and a business necessity.
The EEOC’s April 2012 guidance document, which is still the single best source for this policy, says employers may devise a “targeted criminal records screen” that relies only on the Green factors (see below) but that it must show that the criminal conduct in question has a “demonstrably tight nexus to the position in question.”
This strict interpretation sets a high bar, but the EEOC itself concludes it is possible to exclude applicants based on criminal history without an individualized assessment, e.g., to exclude applicants for a commercial driving position who have had recent, serious traffic violations.
A Two-Stage Process
In practice, employment screening will generally follow a two-stage process. First, a targeted background screening will be designed to comply with the Green factors, identifying applicants who will not be excluded as well as some who would be. The employer would then perform an individualized assessment on the applicants who would be excluded by the screen. Taken together, these two steps use 4 important criteria for evaluating criminal history.
The first 3 criteria come from the Green v. Missouri Pacific Railroad case (523 F.2d. 1290 (8th Circuit, 1975)). It’s useful to note that the issue in the Green case was the railroad’s use of a blanket exclusion policy to refuse employment to anyone with a criminal history other than a minor traffic offense.
The court concluded that this policy was discriminatory, and submitted the following criteria to be used in assuring exclusions were fair:
- The nature and gravity of the offense or conduct: This criterion includes obvious factors like the seriousness of murder compared with a minor drug offense, but also the pattern and persistency of convictions.
- The time that has passed since the offense and/or completion of the sentence: A single conviction many years in the past does not carry the same implications for current behavior as a recent conviction. As in all information related to the applicant, the law asks employers to look at the pattern in context, not in rigid formulas.
- The nature of the job held or sought: If a job creates an opportunity for a specific kind of crime (e.g., shoplifting), excluding someone with a shoplifting conviction in the recent past may be reasonable.
There is an obvious connection between the nature of the crime and the nature of the job. Employers should write or evaluate job position descriptions to identify the kinds of criminal history that would be relevant as the basis for exclusion, and place emphasis on specific crimes in making exclusions. More nuanced factors, like the details of the crime such as whether there was intimidation or deceit involved, will be more easily reviewed in an individualized assessment.
- Individualized assessment: Employers will perform an individualized assessment when an applicant would be excluded based on the results of an initial criminal background check. The applicant should be notified of the reason for the possible exclusion, given an opportunity to dispute or rebut information contained in the background check, and have that rebuttal considered.
Per the EEOC Guidance, an individualized assessment can consider a wide range of factors in addition to the basic Green criteria. Some possible factors include:
- Detailed facts or circumstances surrounding the crime.
- The number of offenses the applicant has been convicted for.
- The applicant’s age.
- Evidence of rehabilitation, such as education or training.
- The work history of the applicant, including whether he or she has been successfully employed in other, similar positions.
- The relevance and character of an applicant’s references.
There is no doubt that the use of criminal background screening in making employment decisions is getting more technical and more complex. Nevertheless, the legal and policy rationale for moving toward seeking more individually unique information does include some clear criteria. When these criteria are followed, employers have a strong case for compliance with anti-discrimination law.