On April 25, 2012 the Equal Employment Opportunity Commission (EEOC) approved a new guidance on criminal background checks. This new guidance discourages a one size fits all approach for exclusions. The commission is encouraging the use of individualized assessments (decision matrix) based on the nature of the offense, time elapsed since the offense, business necessity and job relatedness.
Nature of the Offense
When creating the individual assessment, the nature of the offense needs to be examined before making a hiring decision. Suggestions have been made that exclusions need to be justified, assessed and documented if a hiring decision is going to be based on the nature of the offense.
Time Elapsed Since the Offense
As employers make hiring decisions the guidance suggests that a hiring decision should not be made until the time since the offense is considered. Although, the commission did not say an employer is restricted to verifying criminal history only within a specific time frame; they are saying that the time needs to be considered during the individual assessment before making a hiring decision. Employers should ask themselves the following question. Does a conviction from 15 years ago really pose a threat to my organization today?
Business Necessity and Job Related Consistency
The commission believes that employers need to meet the job related and consistent with business necessity defense consistently.
When an employer validates the criminal history of an applicant there needs to be consistency for all applicants. The individual assessment needs to examine if an exclusion is a business necessity and it is job related. If an employer is not able to justify and show the necessity of excluding an applicant based on these factors, the EEOC may look at this as a violation of Title VII.
Employer Best Practices
- Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct.
- Identify essential job requirements.
- Determine the specific offenses that may demonstrate unfitness for performing such jobs.
- Determine the duration of exclusions for criminal conduct based on all available evidence.
- Record the justification for the policy and procedure
- Document all consultations and research considered in crafting the policy and procedure.
- Train managers and hiring officials on how to implement the policy and procedures to be consistent with Title VII.
- Develop a decision matrix considering at least the nature of the crime, the time elapsed and the nature of the job.
- Determine if the exclusion is a business necessity and job related
- Keep information about applicants’ and employees’ criminal records confidential. Only use it for the purpose for which it was intended.
Title VII “does not necessarily require individualized assessment in all circumstances,” the guidance provides. “However, the use of individualized assessments can help employers avoid Title VII liability by allowing them to consider more complete information on individual applicants or employees, as part of a policy that is job related and consistent with business necessity.”
The new guidance became effective on April 25, 2012 and needs to be taken serious by all hiring officials, it is the responsibility of the employer to make sure they are following this new guidance. Begin immediately examining your policy and procedures and contact your criminal background screening vendor, they should be knowledgeable with these new guidelines to help you through these steps.