EEOC Guidance

EEOC Guidance Overview

In its Guidance, the EEOC indicates that employers should develop targeted screening when utilizing criminal records in employment decisions. This targeted screening must, at the very least, consider the following “Green” factors (Green v. Missouri Pacific Railroad, 523 F. 2d 1290 (8th Cir. 1975)):

• Nature and gravity of the crime
• Harm caused
• Legal elements (specifics of crime)
• Classification of offense (misdemeanor v. felony)
• Time since conviction
• Nature of the job

The Guidance also indicates that targeted screening must be based on a written policy, which according to best practices outlined in the Guidance, must include the following:

• Essential job requirements for each position for which a criminal background check will be utilized
• Documentation for the validating the policy
• Including research and data gathered for the formulation of the policy
• Training for individuals involved in hiring to ensure compliance with Title VII
• Offenses that would not be acceptable for the job along with a timeframe for how long the offenses would be considered unacceptable for the position
• “Individualized assessment” for applicants who are convicted of any of the crimes identified as unacceptable in the policy document

Adverse Decisions

If an adverse decision results from the evaluation of the targeted screening policy document, the consumer must be informed prior to making the adverse decision and the employer must offer an “individualized assessment” before the final adverse decision is made. This “individualized assessment”, according to the Guidance document, must be comprised of the following factors:

• The facts or circumstances surrounding the offense or conduct
• The number of offenses for which the individual was convicted
• Older age at the time of conviction, or release from prison
• Evidence that the individual 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
• Rehabilitation efforts, e.g., education/training
• Employment or character references and any other information regarding fitness for the particular position
• Whether the individual is bonded under a federal, state, or local bonding program

Best Practices

The EEOC offers the following best practices through the Guidance:

• Eliminate policies or practices that exclude people from employment based on criminal records
• Train managers, hiring officials, and decision makers about Title VII and its prohibition on employment discrimination
• Develop a policy for  utilizing criminal records in the screening process
• When asking questions about criminal records, limit inquiries to records for which exclusion would be job related for the position in question and consistent with business necessity
• Keep information about applicants’ and employees’ criminal records confidential. Only use it for the purpose for which it was intended

For more information, visit the EEOC's FAQ page.