Recently, a House Subcommittee heard from the EEOC on individualized assessments and criminal background checks as a matter of policy. An attorney representing the U.S. Congress alleged that the EEOC’s guidance is faulty. Evidence of this was made clear when the EEOC Chair Berrien admitted that the agency does not follow its own policy on individualized assessments.
Does that mean that employers no longer have to follow EEOC guidance and can abandon individualized assessments? No. This is a case of “Do as I say, and not as I do.”
Individualized assessments are mandated by law and are absolutely necessary to maintaining compliance. If you forgo this step, and you are not the EEOC, the fallout will be costly.
Make time to review each employment screen
In the lawsuit against Dollar General filed by the EEOC in June 2013, the EEOC alleged that the company’s practices violated Title VII of the Civil Rights Act of 1964 because the applicant’s records were not individually reviewed against the job expectations—rather, their company had a blanket policy on records found during the pre-employment screen.
This lawsuit emphasizes the need to review each applicant’s record individually against a set of very specific criteria. Namely, the EEOC guidance on the use of criminal records passed in 2012. In this document, the EEOC created a de facto new requirement that attempts to address any potentially discriminatory impact the background checks may have. Employers must consider past criminal conduct, taking into account any success the applicant has had since then, and measure that against their ability to perform the tasks involved in the position for which they are now applying. However, the EEOC does not specify how this process should take place. Candidates may be informed through writing, by telephone, or in person, depending on what is right for your organization.
According to the EEOC, some factors you should consider during the individualized assessment include:
- Additional facts or circumstances surrounding the offense.
- Age of applicant at the time of the offense or at the time of release.
- Evidence that the individual has since performed the same type of work post-conviction with no known incidents of criminal conduct.
- Employment history after the offense, including rehabilitation efforts, education, and or training. Especially employment history that shows the applicant has performed duties required of the open position.
Key takeaway: Take the time to do an individualized assessment of every candidate and their pre-employment screen results. A blanket policy does not provide protection; rather, it creates the opportunity for an EEOC lawsuit.