It has been four years since the Equal Employment Opportunity Commission (EEOC) released their guidance on how employers should use criminal convictions reported on an employment background check. One of the major components highlighted in the guidance was the individualized assessment, and the importance of allowing the job candidate to explain any past criminal records; however, employers are still confused on how to conduct an individualized assessment. The guidance defines the assessment as “a process that allows a candidate to give evidence that a conviction is not related to his or her ability to do a job and allows employers the opportunity to decide whether a criminal record is specifically related to the position being applied for.”
The goal of the EEOC guidance was to aid people in demographic groups with higher incarceration rates to get jobs and not be disqualified from the candidate pool due to past criminal activity. A survey conducted on 1,337 employers showed that 50% of them were not satisfied of the way they conduct the individualized assessments, 40% were concerned with the way the processes is communicated internally to hiring managers, and 30% were concerned by the way the process is communicated to the applicants and how the process is documented. The EEOC identified “Green Factors” when assessing applicant’s criminal records and job-relatedness:
- The nature and gravity of the offense
- The time that has passed since the offense and/or completion of the sentence
- The nature of the job sought
Once employers consider the above factors then they must conduct the individualized assessment, per each applicant (case by case). An assessment isn’t required for all jobs (i.e. child abuse if working with children).
Here are a few tips employers can use when navigating through the assessment:
- Have a written policy which explains how the individualized assessment process will be conducted. Pam Devata from Seyfarth Shaw says that the policy is “tremendously important and is exhibit A in any defense of a lawsuit charging you with discrimination.”
- Employers should carry out a position-specific matrix which will match specific kinds of criminal records with job disqualifiers and uphold consistency in application.
- Employers should consistently conduct the assessment across business units and locations. Limit the people involved to “those that need to know” will aid in the fairness of the assessment.
Read the entire EEOC Guidance here.