Employment Background Screenings and the New EEOC Guidelines

Employment Background Screenings and the New EEOC Guidelines

            The U.S. Equal Employment Opportunity Commission (EEOC) is tasked with preventing workplace discrimination.  Under Title VII, employment discrimination is prohibited based on race, color, religion, sex, or national origin.  Under the new guidelines (“New EEOC Guidelines…”, 2012) issued in April, an employer may potentially avoid Title VII discrimination with an Individual Assessment.  Prior criminal conduct can exclude an applicant from employment consideration if the following conditions are met:

  • The criminal conviction is directly job related; or
  • An individual assessment is conducted where the employer provides the applicant an opportunity to prove exclusion does not apply under the guidelines; and
  • The employer evaluates the additional information provided by the applicant and demonstrates that both:
    • The neutral policy for the criminal conviction is job related for the position applied for; and
    • The decision is consistent with business necessity (disparate impact liability under Section V).

The consideration of the criminal history of an applicant should include the following decision points: the facts of the case, frequency, age at conviction and release, employment history within the same position applying for without criminal incident, experience before and after conviction, rehabilitation efforts (education, training, experience), references, whether or not the applicant is bonded (federal, state, or local).

Additionally, an arrest may only be considered if it is job related and a business necessity.  Otherwise, an actual conviction is required in order to adversely affect the applicant’s standing.  However, decisions must be made consistently and uniformly across race, color, religion, sex, and national origin (disparate treatment liability under Section IV).  Under Section III(A), individuals or organizations providing pre-employment screening services to the employer are considered consumer reporting agencies (CRAs) and as such are subject to the Fair Credit Reporting Act (FCRA) 15 U.S.C. § 1681, which requires the following:

  • May not report arrests over 7-years old that did not result in a conviction; and
  • Convictions may be reported indefinitely.

The new EEOC guidelines include detailed best practices which an employer should consider when designing, implementing, and evaluating their hiring practices.

Resources

New EEOC Guidelines on the Consideration of Arrest and Conviction Records in Employment Decisions.  (2012, April 25).  Pursuit Magazine.  Retrieved from, http://pursuitmag.com/new-eeoc-guidelines-on-the-consideration-of-arrest-and-conviction-records-in-employment-decisions/

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