The U.S. Equal Employment Opportunity Commission (EEOC) issues its guidance on many employment-related topics, but the Enforcement Guidance regarding arrest and conviction records is one of the more compelling and important items for employers, as so many are impacted.
In an economy where more than one in four U.S. adults have a criminal record, it’s going to be very likely that your job applicant pool will include ex-offenders. While the EEOC’s official guidance on the use of criminal records in hiring have been controversial, we contend that employers are wise to follow the guidance to help avoid unintended discrimination and legal action.
Here are 3 key aspects of the EEOC’s enforcement guidance you should know:
1. Obtain and consider only background information that is job-related and of clear necessity to the business.
The theme “job-related and a business necessity” is a mantra for the application of EEOC principles. What it means is that the employer has to be able to link the specific criminal conduct in the case with “risks inherent in the duties of a particular position” in order to justify using the criminal background to exclude an applicant. This requirement shapes the background search process to provide information that applies to the risks inherent in the job.
2. Use the “Green Factors” in a targeted screen where an applicant has a criminal record.
The EEOC uses important legal cases as precedent for defining its guidelines, and one of the most famous cases is the 1975 Green v. Missouri Pacific Railroad. The court defined three criteria that could be used to exclude an applicant for reasons that are job-related and a business necessity:
- 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
A targeted screen based on these criteria may lead you to conclude that the applicant’s criminal background is not sufficiently risky for the job in question to withhold employment if he or she is otherwise qualified. However, if the risk still appears to be great, there is one more step.
3. Perform an “individualized assessment” to justify excluding an applicant with a criminal background.
When the applicant might be excluded, the most prescriptive parts of the EEOC adverse action procedures kick in. The EEOC says you (the employer) should inform the applicant that they could be subject to being excluded because of a negative criminal background and that an individualized assessment will be performed. The applicant should be given sufficient time to rebut the claims in the background research, and the employer should evaluate whether the applicant’s rebuttal changes the decision.
Note that the EEOC Guidance is not only less prescriptive than the Fair Credit Reporting Act (FCRA), it is quite open to judgment in each case. Nevertheless, many legal actions against employers have been based on these anti-discrimination guidelines, and it behooves you to implement them, likely within a structure that is designed around the FCRA rules.
For more information about adverse action, download a free copy of our new ebook, A Practical Guide to Adverse Action in Hiring.