Authored By W.Barry Nixon, SHRM- CMP
Four years ago, the Equal Employment Opportunity Commission issued new guidance regarding background checks that would address the rise in conviction rates generally, and the disproportionately high conviction rates of African American and Hispanic men. The Enforcement Guidance would amend the increased availability and ease of the use of criminal background checks by employers.
The EEOC based these changes on its belief that decisions based on arrest are not job related and consistent with business necessity, but should be considered case by case. The cases in which an applicant is not considered could run afoul of Title VII of the Civil Rights Act of 1964. Employers should consider 1. The nature of gravity of the offense of conduct; 2. The time elapsed since the offense, conviction or completion of sentence; and 3. The nature of the job for which the applicant has applied.
The Guidance recognizes that Title VII does not necessarily require individualized assessment and that certain industries, jobs and situations are not required to follow this policy. The EEOC also pointed out that compliance with federal law, such as the FDIC Act, as well as compliance with federal statutes and registration, is a defense to a claim on discrimination under Title VII. It also was noted that Title VII preempts state laws that conflict with it, but that it is likely that an individual’s ability to satisfy state law requirements for conduct of a specific position is a qualification that is job related and consistent with business necessity.
Private Investigators should consider the following Client Considerations:
* If there isn’t yet a background screening policy in place, create one.
* Review any existing policies to ensure compliance with the new guidance. Make adjustments where necessary to ensure practices are justified as job related and consistent with business necessity.
* The client should conduct an in-depth job analysis to develop clear criteria that addresses the specific offenses that may demonstrate unfitness for performing the position and the duration of exclusions for criminal conduct.
* Establish an individual assessment process for candidates that reviews the circumstances specific to the individual, including the number of offenses; the age at the time of conviction or release from prison; evidence that the individual performed the same type of work in the past; the length and consistency of employment history; any rehabilitation efforts; and whether the individual is bonded under a federal, state, or local bonding program.
*It is important to understand and follow the current FCRA requirements to advise individuals that an adverse action has been taken based on their background check, along with giving the applicant the opportunity to appeal.
* Develop and implement training for recruiters and job interviewers in the use of the new or revised policy that reflects the EEOC’s Guidance.
* Develop an online refresher training that will cover the essential points as a requirement for each supervisor who opens a position.
* Review employment application and job posting policies.
* Ensure that all applicant and employee criminal records remain confidential and only used for the purpose for which it was intended.
To see the full context of the Guidance and announcement, visit www.eeoc.gov.