Ask Angela: Questions on the EEOC Guidance
February 6, 2014
Since the EEOC clarified its guidance on the use of criminal background checks in 2012, there’s still a lot of confusion out there. I am hearing from many employers struggling with how to draft and implement a background screening policy that 1) protects their organization 2) is fair to job applicants, and 3) will stand up to an EEOC enforcement action. Below are a just a few of the questions that I’ve been hearing recently.
1. Should we be asking only about felony convictions?
Arbitrarily eliminating a whole category of offenses can be a big mistake. A misdemeanor in one jurisdiction may be classified as a felony in another. But some organizations may have good reason to limit the amount of criminal information they want to consider.
Consider qualifying your policy to specify the types of crimes you are concerned about, rather than the level of the offense. For example, you may want to consider differentiating drug related convictions and violent offences rather than simply categorizing them as felonies or misdemeanors. Misdemeanors, open cases, and even lesser included offenses or alternative dispositions may all be relevant. Just be sure to consider the nature and gravity of the offense, age of the offense, the relevance of the offense to job requirements, and any state specific laws.
Under the EEOC guidance, criminal background information should be job related and consistent with business necessity. Talk with your company’s counsel about drafting your background screening guidelines and documenting them in writing. You should also consider putting together a hiring matrix that delineates the relevancy of different offences based on the position you are filling. Nurses will probably be held to a different standard than drivers or food service workers. Just make sure that your policies and job descriptions explain your rationale.
2. Can I exclude all applicants convicted of a violent crime?
Blanket exclusions are definitely a bad idea. But violent crimes are serious and there may be good reason not to hire a job applicant with an assault conviction or even a disorderly conduct.
The answer in part, depends on the job. The criminal background information has to be job related and consistent with business necessity. If you don’t have a written policy—get cracking. Not to put too fine a point on it, take into account the nature and gravity of the offense, time since the conviction, and the nature of the job. Make sure the job description and your hiring guidelines explain the reason for checking the criminal background and how those factors are weighed.
Let’s say that you go through each of the steps above. Let’s say that, after detailed analysis and careful consideration, you determine that you want (and have reason) to exclude all applicants who have a violent criminal history. If that’s the case, I recommend that you consider adding another step to your hiring process–conducting an individualized assessment. Before you make the final decision not to hire, give the applicant a chance to weigh in with additional information. This is sort of like “due process” for the job applicant. They can tell you why you should hire them, even though they don’t meet your standards. The EEOC has a whole list of questions to consider in an individualized assessment—you can find additional information here.
3. I interviewed three applicants for one position. Two of the three admitted to having criminal convictions. Otherwise, all are equally qualified. Can I exclude the two with convictions without it being considered “discrimination”?
The short answer is yes–you can. Excluding candidates based on a clearly defined, job related policy (I am assuming that you have one—if you don’t, see above) is not, on its face, discrimination. But of course, nothing is that simple. The EEOC is very busy these days suing companies for disparate impact discrimination—discrimination that they claim is the unintended consequence of certain hiring practices. According to the EEOC, since minorities are more likely to have a criminal history, eliminating applicants because they admit to a criminal history can result in disparate impact discrimination.
Based on your question, it sounds like the conviction information was gleaned from the job application or in the interview. Some states and local jurisdictions agree with the EEOC about disparate impact discrimination, and don’t allow you to ask about criminal history on the job application. Others don’t even allow this during the interview stage. As these laws seem to be spreading like wildfire, I definitely recommending finding out whether you are subject to a ban the box statute or ordinance.
Remember, you have a right to know about the criminal past of your job applicants. But keep your eyes open, consult with your experts, screening firm, and legal counsel, and weigh the risk of a discrimination claim and an EEOC enforcement action. Larger companies have been the more attractive targets, since class actions grab big headlines and pay off in big dollars.
Great questions, as always. If you have a compliance question related to background checks, just ask Angela: firstname.lastname@example.org.
EmployeeScreenIQ is not a law firm and the information provided in this article does not constitute legal advice.
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