Government and Human Resources

Individual assessments required with criminal background checks

EEOC stresses that one size does not fit all when it comes to hiring.

December 29, 2012
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Human resource departments and hiring managers are being met with a new challenge when it comes to criminal background checks: individualized assessments for the disqualification of a candidate based on his or her criminal background.

Though the U.S. Equal Employment Opportunity Commission has not changed its position on criminal background checks, the organization did up the ante in 2012 by issuing detailed guidelines for employers to follow, which includes getting rid of blanket hiring policies pertaining to criminal history.

“Their enforcement position hasn’t changed,” said Donald Lawless, partner with law firm Barnes and Thornburg. “I think 10 years ago they probably would have told you the same concerns that they had about criminal background checks, but they know by issuing these detailed guidelines, they are going to get broader compliance with their enforcement position.”

Noted in the EEOC guidelines is the large increase in individuals who have had contact with the criminal justice system — one in every 31 people in 2007. There also is a stark contrast among those who are convicted of crimes: African-American and Hispanic men are disproportionately affected.

“African-Americans and Hispanicsare arrested at a rate that is two to three times their proportion of the general population,” according to the EEOC guidelines. “Assuming that current incarceration rates remain unchanged, about one in 17 white men are expected to serve time in prison during their lifetime; by contrast, this rate climbs to one in six for Hispanic men, and to one in three for African-American men.”

The new guidelines are an attempt to address the disparate treatment in hiring that results from blanket criminal background exclusion policies. National data indicates criminal record exclusions in hiring have a disparate impact based on race and national origin, which violates Title VII and the 1964 Civil Rights Act, according to the EEOC.

“If we create a class of people that are unemployable or chronically underemployed because they have a criminal background — that, in their judgment, unfairly impacts certain minority groups,” Lawless explained.

So instead of a neutral hiring policy based on criminal history, the EEOC requires employers to ensure that a person is only being excluded from a position based on his or her criminal history if that history relates to the job requirements or business necessity.

Companies are being asked to take a deeper look into someone’s criminal history and answer the following questions:

  • What was the crime?
  • How long has it been since it occurred?
  • Is the conviction still relevant today, given all the additional facts?
  • Does the conviction have relevancy to the available position?

“You can have facts that say it just doesn’t have any continuing relevance,” said Lawless.

However, sometimes a person’s criminal record is relevant, and as long as a company documents its reasonable decision-making process around the disqualification of the applicant, it should remain within EEOC compliance.

“An example might be if you are an FDA-regulated company involved in pharmaceuticals and someone has a controlled substance conviction and they are going to have exposure to controlled substances in their work. Now you’re starting to talk about something that could be a basis for disqualifying someone,” Lawless said.

He said a company should do three things to ensure it is following the EEOC guidelines. The first is to develop the guidelines it will utilize during the individual assessment, prior to the hiring process. Second, make sure that if it is disqualifying someone from a position, it is reasonable and the reasoning is specific — and the company should keep records of why the decision was reasonable concerning this person and position. Finally, the company should make sure it is complying with regulations already in place, like the Fair Credit Reporting Act.

 

By following these suggestions, a company can more easily show the decision-making process involved and prove that a thorough individual assessment was conducted.

For many companies, a criminal background check begins with a box on their employment application. Lawless said that, while such a box isn’t unlawful, it is worth considering its removal.

“The checkbox on the application form now becomes a matter of judgment and risk. … My answer to clients is, if you are going to keep using the box on the application form, then it becomes critically important, in my judgment, that you have good protocols in how you evaluate that information,” he said.

“So that if the individual’s criminal background becomes a deciding factor in disqualifying that candidate, then I want you to have good guidelines in place and a good record of doing the individualized assessment. Because otherwise, if you are just acting on that checkbox, then you are vulnerable to that questioning of how you are using information and are you really following what the expectation is, at least as defined by the civil rights agencies.”

Some businesses see the increased vigilance by the EEOC on criminal background checks as adding to their liability and potential lawsuits if something bad should happen with a previously convicted employee. Lawless said in no way do the guidelines require an employer to hire someone with a dangerous or relevant criminal history.

“I think, generally, if you look at the trend line of workplace violence, it’s actually going down,” Lawless said. “I think it’s because employers do a pretty good job of assessing and intervening in this area. But part of that, too, is that they do a pretty good job of assessing who’s qualified for employment and, generally, employers are in a very difficult position here because there are bodies of case law that talk about failure to use reasonable care in hiring and retaining employees that have violent tendencies, versus the scrutiny they are going to get if they hire someone that has a history of violence and something bad happens.”

Lawless said although this area can be the most difficult for employers, as long as there is reasonable judgment behind the hiring decision he expects an employer will be well within the EEOC’s guidelines.

“It’s not going to cause me to advise a client to hire someone with a recent history of violence in their criminal background,” Lawless said. “It’s going to challenge them to articulate why they are disqualified, and that can be done.”

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