When you ask “Have you ever been convicted of a crime?” of an applicant, and what you do with the criminal history information once you get it, can be tricky. The U.S. Equal Employment Opportunity Commission (EEOC) previously issued “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.” The EEOC’s guidance allows employers to use such records when making employment decisions on applicants and employees -- but beware! For those employers who have policies or practices that have a discriminatory impact on minorities based upon race or national origin without any business justification or job-relatedness, they are going to see consequences. The EEOC’s reasoning for such an analysis is due to the fact that African Americans and Hispanics are arrested and incarcerated at a higher rate than non-minorities.
Individualized assessment required
According to the EEOC, when an employer uses criminal background checks to make employment decisions, the employer must make an “individualized assessment” when it receives negative information and then determine whether the “crime fits the time” with the job duties and position of the individual. Thus, it is recommended that employers should not have a blanket policy or practice that no employee will be hired who has been convicted of a crime within the last seven years. Although the traditional argument is that this cannot be a discriminatory policy since it applies to and treats all individuals on a consistent basis, such policies and practices are only facially neutral according to the EEOC. Consequently, the EEOC expects employers to take the next step and determine and support that their policy and practice for making an adverse employment decision based upon an individual’s criminal record is “job-related for the position in question and consistent with business necessity.” Specifically, the EEOC states that an employer must show that such a decision (practice or policy) “operates to effectively link specific criminal conduct, and its dangers, with the risks inherent in the duties of a particular position.”
New background check factors
Employers are now met with the extra burden of looking at each individual background check employment decision separately to analyze multiple factors, such as:
i) the nature and gravity of the criminal conduct;
ii) how much time has elapsed since the conviction or sentence;
iii) was there post-conviction employment in the same type of work with another employer without incident;
iv) whether this crime has any impact on this particular position; and
v) whether the individual has taken part in rehabilitation efforts.
The days of having a facially neutral criminal background check policy that treats all individuals the same are over.
Ban the box
Everyone has been throwing around the term – “Ban the Box.” What does this mean? Before you even get to pulling an applicant’s criminal record, you need to determine if your city/state/county even allows you to ask about criminal convictions on an application. Illinois has become the fifth state on a growing list of states (currently Massachusetts, Rhode Island, Minnesota and Hawaii) to enact “Ban the Box” legislation. Additionally, approximately 50 cities and counties throughout the U.S. have similar ordinances that apply to not only the municipalities and, in some cases, vendors who do business with those municipalities, but private employers as well. Generally, “Ban the Box” forbids employers from inquiring about a job applicant’s criminal record or criminal history prior to the applicant being selected for an interview or, if there is no interview, prior to a conditional offer of employment being made. Once an applicant is selected for an interview or receives a conditional offer of employment, the employer may make inquiries into the criminal record or history, including conducting a criminal background check. Some of the laws will give exceptions based upon certain jobs, but it’s important to know if you are under any “Ban the Box” laws.
Putting it into practice
- First, confirm whether your city/state/county has a “Ban the Box” law you should be following. If so, remove any questions regarding an applicant’s criminal records from your applications.
- Revisit any policies and/or practices you have to ensure they are compliant with the EEOC’s new Enforcement Guidance, along with any state laws that may apply. If you didn’t have any policy in place before, you should do so now in a written form. This allows you to support your practice of doing an individualized assessment of job-relatedness and applicability to the job for each criminal record should you receive any discrimination complaint that you are not doing the assessment.
- Train management and/or human resource staff who are making these employment decisions once you receive a criminal background check to be compliant with the new policy and this EEOC guidance.
- If you aren’t already, be sure you are in compliance with the Fair Credit Reporting Act with all notifications and correspondence that must be given to individuals whom you are conducting such searches with consumer reporting agencies.
