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Overview of new EEOC guidance regarding use of criminal background information

  May 9, 2012

On April 25, 2012, the Equal Employment Opportunity Commission (EEOC) released a guidance document on the use of criminal background information.  Since then, companies around the nation are attempting to understand exactly how these changes might affect them.  Even though the EEOC guidance document is not binding in court and holds no official legal weight, courts rely heavily on policy statements and EEOC guidance.  Therefore it’s important that employers take these changes seriously, review current policies and enact changes if necessary to protect themselves.

The good news for employers is that they can continue using criminal background checks as a screening tool for applicants and employees.  However, employers are specifically discouraged from asking about a criminal record on the application.  They are encouraged to conduct an individualized assessment of the applicant/employee when job exclusion occurs because of a criminal record.  The Green factors – nature of the crime, time elapsed, and nature of the job – are used to determine whether exclusion is job-related for the position in question and consistent with business necessity. 

According to the new guidance, “to establish that a criminal conduct exclusion that has a disparate impact is job related and consistent with business necessity under Title VII, the employer needs to show that the policy operates to effectively link specific criminal conduct, and its dangers, with the risks inherent in the duties of a particular position.”

The EEOC suggests that an employer can meet this test by:

• Validating the screen using the Uniform Guidelines on Employee Selection Procedures.

• Develop a targeted screen that takes into account the Green factors and then offers an opportunity for an individualized assessment.  An individualized assessment provides the applicant or employee an opportunity to offer additional information demonstrating why the exclusion should not apply.

This new guidance holds employers to a higher standard when using criminal background history in the hiring process and you should expect the EEOC to enforce these changes.

Click here to read the EEOC guidance.

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