As you may already be aware, the EEOC is advising employers to use individualized assessments in cases where criminal history might be used to exclude a job applicant. The aim of the EEOC is to induce employers to look more at individual factors that might mitigate the impact of a conviction to avoid discrimination, and to help more people find jobs.
The EEOC isn’t alone in this quest. The almost viral growth of Ban the Box legislation is built around the same idea: to help people find employment by reducing the use of blanket criminal history criteria for excluding applicants.
We decided to probe Google a bit to see what is the current status of Ban the Box legislation around the county. It turns out that you can set your search parameters to look at as little as the past 24 hours and get results. In the past day, the Washington DC Council passed Ban the Box laws, and the Roanoke City Council was discussing the same topic.
In other words, the policy effort to get employers to focus more on individual factors in using criminal history in employment decisions is not going away any time soon. In the interest of fairness, the rules are asking employers to balance the security of excluding people who have any risk factors versus the individual’s need to be evaluated for how much risk they actually pose for the job in question.
The idea of “individualized assessments” can be daunting if you conceive of it as a full-blown individual review of each and every applicant. Some employers would quit hiring, and that would defeat the point. But the EEOC guidance actually suggests a path to compliance with anti-discrimination rules that will still allow employers to exclude the truly risky bets in the applicant pool.
In brief form, here’s what an individualized assessment entails.
Design your basic background screening process around criteria that are related to the job in question and truly make a difference for your business. This is the basic test the EEOC poses. Use this general screening to separate your applicant pool into a group that would not be excluded for reason of criminal history, and one that could be.
Perform an individualized assessment on applicants in the group that would be excluded due to criminal history.
- Notify the applicant he or she might be excluded due to criminal history, and share the research with them.
- Give the applicant reasonable time to rebut the evidence.
- Perform a review of potentially mitigating factors, such as the exact circumstances of the crime, the time that has passed since the incident without repeating it, and the specific requirements of the job. The exclusion should fit the crime.
- Based on your review, confirm the exclusion or revise it, and notify the applicant of your decision.
Remember that the purpose of more individual treatment of ex-offenders in the hiring process is to avoid discrimination and promote fairness in the hiring process. You should avoid using blanket exclusion policies because they may trigger the kind of scrutiny from the EEOC you do not want.
That said, you can and should create a background screening process that allows you to weed out the risky hires. You can do this with a process that incorporates individualized assessments, and protect your customers, suppliers and staff at the same time.
For more information, download our new whitepaper Individualized Assessments: A Model for Using Criminal Background Checks in the Hiring Process.