In early 2012, the U.S. Equal Employment Opportunity Commission Office of Legal Counsel issued updated guidance regarding the handling of criminal history checks in the course of background screening. Furthermore, the EEOC has announced it will aggressively pursue, as class actions, claims of discrimination that arise as a result of criminal history checks. Although the 2012 guidance clarifies long-standing EEOC policies, it is particularly involved — and initially can be confusing for HR professionals and recruiters, alike.
Here’s the good news, especially for those who explore the document in detail. Built into the EEOC guidance is an outline of “protective” methodologies companies can apply when evaluating applicants with criminal histories. These approaches not only help firms ensure excluded candidates meet specific tests to ward off EEOC action, but when implemented on a broad scale they also create an opportunity to increase the overall quality of recruits and hires.
Extensive Criteria Bring Clarification
“In the [April 2012] guidance, the EEOC reinforced the validity of the three-factor test identified by the 8th Circuit in Green v. Missouri Pacific Railroad Company,” says Michael Blickman, a partner with Ice Miller, LLP; a law firm known for its work with employment and labor issues. “However, if the Green decision was a ‘sketch,’ the new guidance is a mural.”
To reiterate, the Green factors that companies must consider when evaluating a criminal record are:
- The nature and seriousness of the offense or conduct;
- The time elapsed since the conviction and/or completion of the sentence; and
- The nature of the job sought.
Now, the EEOC recommends companies also consider other factors:
- The facts or circumstances surrounding the offense or conduct;
- The number of offenses for which the individual was convicted;
- The applicant’s actual age at: (a) the time of conviction; and (b) the date released from prison;
- Evidence that the applicant performed the same type of work, post-conviction, with the same or a different employer, with no known incidents of criminal conduct;
- The length and consistency of employment history before and after the offense or conduct that led to the conviction;
- Rehabilitation efforts undertaken by the applicant, i.e., education and training;
- Employment or character references and any other information regarding fitness for the particular position; and
- Whether the individual is bonded under a federal, state or local bonding program.
An Opportunity Arises
At first glance, these criteria may seem overwhelming. Upon closer inspection, savvy HR professionals will recognize they can be a roadmap to safe conduct. Furthermore, they offer a framework HR departments — and third-party recruiters and background screeners — can use to improve hire quality and foster a more vibrant corporate culture. Barada Associates has identified steps within the hiring process where companies can facilitate these outcomes by adopting best practices relating to the EEOC guidance.
Doing so will help shield a firm from liability and increase the likelihood that hires are both highly qualified for their positions and a good corporate “fit.” Some of the practices we recommend are:
- Don’t use “standardized” background checks, which might encourage you to take action on information that may not be relevant.
- Screening techniques — drug tests, background checks, reference interviews, etc. — should be tailored for both the position and the company.
- When tailoring techniques for the company, consider not only the firm’s “culture” (which often tends to be a catch-all phrase), but also its ethics, business approach, personality (the working environment), and any conditions unique to the firm that impact your hiring decisions.
- Document these corporate considerations and ensure tjat they are applied fairly and evenly across all hiring practices.
- In creating this framework, make sure every component reflects the new approach (in other words, don’t adopt it for some but not all components).
- The more elements your screening package includes—in-depth reference interviews, detailed reports, skills assessments, etc. — the better your position to prove fairness, provided all of them are tailored to the requirements of the job and spirit of the company, not the attributes of the applicant.
If you are using services and techniques that are relevant to someone’s capabilities to do the job and they’re a fit for your firm, it’s very likely you are also complying with EEOC guidance.
The EEOC guidance is just that –guidance. It is not a law or regulation. However, Blickman says, the courts may look to the EEOC for direction. Furthermore, most companies prefer to avoid legal battles, so when the EEOC investigates a complaint, settlements usually follow. Even companies that think they are immune — for example, are required by law to exclude certain types of offenders for a specific period — may find themselves in trouble if the courts determine that a less discriminatory method would have served the purpose as effectively.