On April 25, 2012, the Equal Employment Opportunity Commission (EEOC) issued revised enforcement guidelines on the use of criminal records in hiring decisions. In its guidance, the EEOC sets out to ensure that applicants’ exclusions due to past criminal conduct are both job-related and a business necessity. The Commission recommended and set out guidelines for candidates individualized assessments to drill deeper into the information about applicants who might otherwise be excluded by a criminal background check.
This 2012 guidance has been reaffirmed through recent EEOC enforcement actions and should be considered a key concern to employers who use criminal records in hiring.
Adding an individualized assessment to a criminal background check seems like a lot of extra work (and it IS extra), but it can fit into a well-designed background screening process with minimal cost. The extra step also puts the employer on the right side of fairness, not to mention regulation enforcement and private litigation.
It helps to understand why and when an individualized assessment is needed; and when it isn’t. An individualized assessment is not always required.
Why individualized assessments?
The foundation of the individualized assessment in law is the Civil Rights Act of 1964, as amended, which included provisions to stop disparate impact discrimination against protected classes of people. In other words, it aims to promote a fairer hiring process. The doctrine of individualized assessment was developed through case law as part of an effort to avoid unintentionally excluding members of a protected class simply because they are members of that class.
An individualized assessment is a deeper look into an applicant’s background to determine if there are individual subjective factors that might explain or mitigate a person’s past criminal behavior. For example, if the criminal behavior occurred a long time ago, with no intervening additional convictions, it may not support exclusion. Other factors may be found, such as successful job performance, education or rehabilitation that show the individual deserves a chance to work.
When is an individualized assessment required?
The first thing to understand is that the individualized assessment only comes into the picture if a job applicant is likely to be excluded due to criminal history. For applicants whose criminal histories do not trigger the exclusion criterion, no individualized assessment is needed. These applicants will have satisfied the hiring test through a preliminary screening, and if they are otherwise qualified, are eligible for hiring. The EEOC also concluded that some past criminal conduct is so obviously excluding, that no individualized assessment would be required.
However, if the criminal behavior would potentially exclude the applicant, all things being equal, the employer has an obligation to determine if all things truly are equal. This process requires communicating with the applicant that he or she is vulnerable to exclusion for a specific criminal behavior, and giving them a chance to rebut the conclusion. In this process, the individual may be able to supply the mitigating information.
In cases where an individualized assessment supports exclusion, an employer may refuse to hire the applicant. With a properly conducted background check, employers are on safer ground both for building a safer, more productive workforce, and for complying with both the letter and the spirit of the law.
The EEOC provides the following Example:
Targeted Screen with Individualized Assessment Is Job Related and Consistent with Business Necessity:
County Community Center rents meeting rooms to civic organizations and small businesses, party rooms to families and social groups, and athletic facilities to local recreational sports leagues. The County has a targeted rule prohibiting anyone with a conviction for theft crimes (e.g., burglary, robbery, larceny, identity theft) from working in a position with access to personal financial information for at least four years after the conviction or release from incarceration. This rule was adopted by the County’s Human Resources Department based on data from the County Corrections Department, national criminal data, and recent recidivism research for theft crimes. The Community Center also offers an opportunity for individuals identified for exclusion to provide information showing that the exclusion should not be applied to them.
Isaac, who is Hispanic, applies to the Community Center for a full-time position as an administrative assistant, which involves accepting credit card payments for room rentals, in addition to having unsupervised access to the personal belongings of people using the facilities. After conducting a background check, the County learns that Isaac pled guilty eighteen months earlier, at age twenty, to credit card fraud, and that he did not serve time in prison. Isaac confirms these facts, provides a reference from the restaurant where he now works on Saturday nights, and asks the County for a “second chance” to show that he is trustworthy. The County tells Isaac that it is still rejecting his employment application because his criminal conduct occurred eighteen months ago and is directly pertinent to the job in question. The information he provided did nothing to dispel the County’s concerns.
Isaac challenges this rejection under Title VII, alleging that the policy has a disparate impact on Hispanics and is not job related and consistent with business necessity. After confirming disparate impact, the EEOC finds that this screen was carefully tailored to assess unacceptable risk in relevant positions, for a limited time period, consistent with the evidence, and that the policy avoided overbroad exclusions by allowing individuals an opportunity to explain special circumstances regarding their criminal conduct. Thus, even though the policy has a disparate impact on Hispanics, the EEOC does not find reasonable cause to believe that discrimination occurred because the policy is job related and consistent with business necessity.
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