In its newly updated guidance EEOC on criminal convictions in the hiring process, EEOC recommends that all employer policies allow for what the commission calls an individualized assessment. Here’s what it means: If an applicant—or an existing employee—has a criminal conviction on his or her record that your policy would screen him or her out of consideration for a job, the commission wants you to go further.
You should search for the following kinds of information:
- Evidence that the person performed the same type of work, after the conviction, that he or she would perform for you, involving no known instances of criminal conduct;
- Rehabilitation efforts the person has made, such as education or training; and
- Employment and character references or other information about fitness for the particular job.
Attorneys from law firm Ogletree Deakins note that the guidance repeatedly urges that a screening process without individualized assessments is more likely to violate applicants’ civil rights.
EEOC Guidance and Validation
Another kind of additional research suggested by EEOC in defense of an applicant rejection is so-called validation, through the Uniform Guidelines on Employee Selection Procedures. These are a lengthy set of instructions issued by the federal government in 1978 and meant to cover the hiring process for all federal employees. It includes statistical models to validate that criminal conduct data actually relates to subsequent work performance.
The trouble is, however, as even EEOC acknowledges in the new guidance, issues about the availability of criminal conduct data and the application of validation studies may create big barriers for employers attempting to comply. Not to mention the time and trouble it is likely to take for employers to conduct individualized assessments, delving into more references and seeking more information.
Said Stephen Woods, a shareholder in Ogletree Deakins’ Greenville, South Carolina, office and chair of the firm’s Background Check Advice Practice Group, “The old phrase ‘the devil is in the details’ has never been more apt than with this new EEOC guidance. Although the EEOC opines that this guidance is a natural evolution of its prior guidance, there are some huge changes…. Only time and, unfortunately, lawsuits are likely to determine whether courts think all or only some of the EEOC’s new guidance is correct.”
EEOC reminds employers that if a state law seems to allow blanket rejections of convicted applicants in a particular industry, federal law supersedes all state laws. Further, even if a federal law seems to permit such rejections, EEOC may still find a civil rights violation. Finally, EEOC does permit some clear exceptions: A daycare center need not ask an applicant to “explain” a conviction of violence against a child, nor does a pharmacy have to bend over backward to justify excluding a convicted drug dealer from work in the pharmacy lab.
In this featured video, HR.BLR.com Legal Editor Susan Prince discusses the guidance, along with six best practices outlined by the EEOC for employers who are considering criminal record information when making employment decisions.
Watch the video.