In 2012 the Equal Employment Opportunity Commission (EEOC) released their guidance on the use of background checks for employment purposes. The EEOC issues guidance, or interpretations of current laws to help set precedence. The EEOC addresses complaints filed with their agency and then files suit against those companies whose policies violate the EEOC’s interpretation of the given law. This puts it in the hands of the courts to establish case law.
By filing a suit, they can establish precedent by court opinion. Most companies choose not to pursue court action against the EEOC as the process is lengthy, expensive, and often bad for public relations due to the nature of the arguments. Instead, these companies will negotiate a settlement in which they agree to admit their error, change their policies, and pay fees which typically extend into seven figures.
To avoid these costly encounters, most companies heed the warnings of these cases and adjust their policies accordingly. In addition to working with legal counsel to create these policies, you need to be working with a background screening company who understands the guidance and who can help your HR team understand best practices in the industry.
What is the Individualized Assessment?
One major element of the guidance that gets tricky is the individualized assessment. The EEOC, in an effort to address disparate impact on minorities in hiring, recommends an individualized assessment to be included with the adverse action process. Minority populations are incarcerated at a higher rate than their white counterparts. This can create a disparate impact on minorities when considering criminal records alone in employment decisions.
According to SHRM, Disparate impact occurs when policies, practices, rules, or other systems that appear to be neutral, result in a disproportionate impact on a protected group. In this case, we can look to the disproportionate rate of incarceration in the United States. According to U.S. Census data from 2020, Whites account for 57.8% of population while Hispanic, Black, and Asian make up 18.7%, 12.4%, and 6% respectively. Compare this to the data from the Federal Bureau of Prisons which shows black inmates account for 38.4% of the prison population and we can see the resulting disparate impact.
The assessment aims to mitigate the impact by requiring employers to consider all factors when making a hiring decision. Most employers are familiar with using the Green Factors to evaluate criminal history: The nature and gravity of the offense(s), the time that has passed since the conviction and/or completion of sentence, and the nature of the job held or sought. The EEOC expands on the Green Factors to include additional considerations including facts or circumstances surrounding the offense, number of offenses for which an individual was convicted, older age at time of conviction or release from prison, evidence the individual performed the same type of work post-conviction, length, and consistency of employment history before and after the offense, rehabilitation efforts (education/training), and employment or character references.
It is important to establish job relatedness and/or business necessity (JRBN) when considering the information. To help you do a targeted screen, consider developing a hiring decision matrix which establishes when certain categories of crime will meet the JRBN criteria and warrant an assessment.
How do I Make Sure I am in Compliance with the EEOC Guidance?
Once you feel you have a firm grasp of the concept of the individualized assessment, employers should develop a policy. Draw on the expertise of your background screening company and make sure you have best practices in place. Your team needs to have the tools in place to support your policies and to make the best hiring decisions. After you have the technical pieces in place, consult with legal counsel to make sure your policy aligns with your company’s practices and is compliant with the law.
After you have a policy, you are confident in, train your team to implement it and to follow it every time you are hiring. One of the biggest mistakes is not applying the policy to everyone consistently. Adding the individualized assessment step to your process can seem burdensome at first. But it’s a worthwhile step, and you may be surprised at the additional information you uncover about individuals. In some instances, it might make you think twice about your initial response to records reported on the background check.
Shane is the Director of Marketing for Integris. With over a decade of experience in the background screening industry, he holds an advanced FCRA certification from the Professional Background Screening Association.
The information provided is not intended to constitute legal advice and is for informational purposes only. Employers are strongly advised to consult with legal counsel on matters related to the Fair Credit Reporting Act.