EEOC Provides New Guidance on Criminal Background Checks

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             The Equal Employment Opportunity Commission (EEOC) recently issued new Enforcement Guidance regarding employers’ criminal background policies, taking a tougher stance against blanket employment policies that automatically reject job candidates with criminal records. The new Enforcement Guidance is rooted in the EEOC’s long-held view that an employer’s use of criminal history information has a tendency to disproportionately and adversely affect minority groups and, thus, violate Title VII.
             Previously, employers had to consider three criteria when making the decision to hire an applicant with a criminal background: 1) the nature and gravity of the offense or conduct; 2) the time that has passed since the offense or conduct and/or completion of the sentence; and 3) the nature of the specific position the applicant has applied for.
            Now the EEOC recommends that employers go through an extensive “individual assessment” on each candidate, including but not limited to, the following criteria:
  • the number of offenses for which the applicant was convicted
  • evidence that the applicant performed the same type of work, post-conviction, with the same or a different employer, with no known incidents of criminal conduct
  • the length and consistency of employment history before and after the offense or conduct
  • rehabilitation efforts, such as education or training
  • employment or character references and other information regarding fitness for the particular position
  • whether the applicant is bonded under a federal, state or local bonding program.
However, if the applicant does not cooperate in providing the background information requested by the employer, the employer can make the hiring decision based on the information at hand.      
     
            Employers who choose to utilize criminal background checks should use the following suggested “best practices” to avoid possible discrimination complaints or lawsuits:
     General Considerations
  • Eliminate policies or practices that exclude people from employment based on any criminal record.
  • Train managers, hiring staff and decision makers about Title VII and its prohibition on employment discrimination.
Develop a Policy
  • Develop a narrowly tailored written applicant screening procedure and policy; identify essential job requirements and determine specific offenses that may demonstrate unfitness for performing such a job.
  • Determine the duration of exclusions for criminal conduct based on all available evidence and include an individualized assessment of each potential or current employee’s background report.
Questions About Criminal Records
  • Limit job application inquiries to records for which exclusion would be job related for the position in question and consistent with business necessity.
Confidentiality
  • Keep information about applicants’ and employees’ criminal records strictly confidential. Only use the information for the purpose for which it was intended.
          Employers should consult an attorney when evaluating or establishing new policies to ensure compliance with any applicable local or state laws.

By: Christina L. Feyen, Esq.

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