You've always checked candidates' backgrounds for criminal convictions, right? After all, who wants to hire a thief or sexual predator? A recent Society for Human Resource Management survey found that more than 90 percent of employers check convictions for some applicants, while 70 percent do so for all. Well, those respondents, and perhaps you, now need to rethink that strategy.
Why is EEOC down on the practice? The Equal Employment Opportunity Commission (EEOC) recently released an updated set of guidelines for employers that use information on criminal convictions in their hiring process. Currently, the commission's focus on this practice is part of its emphasis on systemic discrimination; EEOC points out that rates of arrests and convictions are much higher among African American and Hispanic men than in the general population. As a result, a blanket rejection of anyone with a criminal record may be a facially neutral policy, but it will have a disparate impact on minority candidates.
Is this a new initiative in EEOC's E-RACE (Eradicating Racism and Colorism in Employment) campaign? Not quite: The commission issued guidelines on this same topic in 1987 and 1990. Note that the guidance really concerns only criminal convictions, not arrests. EEOC takes the position that arrests may be mistakes—they don’t mean an individual was convicted, and they shouldn’t be used in hiring decisions.
Is it “job-related and consistent with business necessity”? That’s the key, according to EEOC, to creating a policy that you can follow and not risk violating Title VII. If yours is a financial services organization, for example, you can try to show that a blanket refusal to hire anyone with a criminal conviction for theft—no matter how long ago—is job-related and a business necessity. But EEOC may not buy it.
And if you’re in some other industry, you’d be wise to restrict blanket refusals to only a specific class of jobs. In any situation, it’s important to review the nature and gravity of the crime, how long ago it occurred, and the nature of the job in question. Here are the best practices that EEOC recommends:
- Tailor your policy as narrowly as possible.
- Identify essential job requirements and the circumstances under which work is done.
- Determine the duration of exclusions for criminal conduct (7 years in the past? 10?) based on all available evidence. Include an individualized assessment.
- Include the justification for the policy and procedures.
- Document any counsel and/or research used in creating the policy and procedures.
- Train managers, recruiters, and other decision makers on the policy and procedures.
- Don’t ask about convictions on job applications (this one’s controversial).
What’s an individualized assessment? EEOC included in the guidance two methods recommended for employers to reconcile criminal convictions in the applicant’s favor. For the guidance itself, see http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm.
Learn more. In a recent video, HR.BLR.com Legal Editor Susan Prince explains the Guidance, along with six best practices outlined by the EEOC for employers who are considering criminal record information when making employment decisions.