Many of our clients routinely use criminal background checks when hiring new employees. The EEOC has just issued new guidelines which limit this use.
The EEOC’s concern is that some protected classes, especially minorities, may be unfairly affected (“disparate impact”) by the use of criminal background checks. Accordingly, the EEOC has indicated that when using criminal background checks, employers must be guided by three (3) factors.
First, the employer must consider the nature or gravity of the offense or conduct. For example, armed robbery is more serious than vandalism. Second, the employer must consider how much time has elapsed since the conviction or completion of the sentence. Finally, any criminal past must be evaluated against the nature of the job sought.
The guidelines elaborate on several specific points. Two are worth noting. First, they do not impose a blanket prohibition on the use of the question “have you ever been convicted of a crime?” However, the guidelines state that the question should only be asked of applicants who are applying to positions where the criminal history may be relevant, and even then, the question can only relate to convictions that are related to the job.
The biggest development in the guidelines is the EEOC’s introduction of the concept of “individualized assessment” to criminal background checks. An employer conducts an “individualized assessment” when it informs an employee or applicant that he or she is being screened out due to a criminal record, provides the individual with an opportunity to respond, and the employer considers extenuating circumstances before making a final decision.
The EEOC characterizes individual assessment as a best practice. However, the EEOC has said it is not required in all circumstances. It is not entirely clear under which circumstances the EEOC will expect an individual assessment to be utilized. To be safe, employers should adopt the process uniformly.
Please contact us at www.hwelaw.com if you have questions regarding this article or if we can be of assistance.