There is a new philosophy around conducting an individualized assessment with a candidate that has a criminal past, to determine if in fact the specific crime committed is grounds for disqualification from employment. The Equal Employment Opportunity Commission (EEOC) published a guide in 2012 titled “Consideration of Arrest and Conviction Records in Employment Decisions.” This guide was in direct response to a spike in Title VII lawsuits brought against employers for discriminating against job applicants with a criminal record. Specifically the commission’s stance is:
An employer’s neutral policy (e.g., excluding applicants from employment based on certain criminal conduct) may disproportionately impact some individuals protected under Title VII, and may violate the law if not job related and consistent with business necessity (disparate impact liability).
This means employers should eliminate any “blanket” statements stating that past criminal activity will be grounds for disqualification from any employment consideration. Instead the guidance looks at 3 questions that must be answered to determine suitability for employment:
- The nature and gravity of the offense or conduct.
- The time that has passed since the offense or conduct and/or completion of the sentence.
- The nature of the job held or sought.
Therefore, when you receive a completed screening report that has reportable adverse information, it’s vital that a review is done with the subject of the report aka the applicant. Hopefully, the candidate was allowed an opportunity to disclose any past criminal activity either on the employment application (keep in mind that soon employers may not ask this question on an application) or during the interview process. If the candidate was truthful and disclosed information that matches what was revealed on the background check, then it’s time to go over the three questions above.