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Record retention is complex and time consuming. However, in addition to complying with various federal and state laws, keeping good, well-organized records can be very helpful in documenting and supporting an organization’s employment actions.
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This special report will discuss how you can ensure your records are in good order, and establish a record-retention policy.

Topics covered:
1. Hiring Records
2. Employment Relationships
3. Termination Records
4. Litigation Issues
5. Electronic Information Issues
6. Tips for Better Recordkeeping
7. A List of Legal Requirements

Make sure you have the information you need to know to keep your records in order.

September 18, 2012
New rules on hiring: Considering age and criminal records

New rules from the EEOC may impact hiring decisions for contractors and noncontractors alike. In 2012, the EEOC issued new rules and guidance that govern age discrimination and the consideration of arrests and convictions in hiring.

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New age discrimination rules

The Age Discrimination in Employment Act of 1967 (ADEA) prohibits private employers with 20 or more employees from discriminating against employees aged 40 and over because of the employee’s age.

The ADEA prohibits intentional age discrimination (known as “disparate treatment”), as well as practices that, although facially neutral with regard to age, have the effect of harming older workers more than younger workers (known as “disparate impact”). An employer may defend against a claim of age discrimination on the basis of disparate impact if the employer can show that the employment practice in question is based on a reasonable factor other than age (RFOA).

In 2012, the EEOC issued a final rule explaining the RFOA defense. According to the final rule, an employment practice is based on an RFOA when it is reasonably designed and administered to achieve a legitimate business purpose in light of the circumstances, including its potential harm to older workers.

The rule provides a nonexhaustive list of considerations to help employers determine whether an employment practice is based on an RFOA:

  • The extent to which the factor is related to the employer’s stated business purpose;
  • The extent to which the employer defined the factor accurately and applied the factor fairly and accurately, including the extent to which managers and supervisors were given guidance or training about how to apply the factor and avoid discrimination;
  • The extent to which the employer limited supervisors’ discretion to assess employees subjectively, particularly where the criteria that the supervisors were asked to evaluate are known to be subject to negative age-based stereotypes;
  • The extent to which the employer assessed the adverse impact of its employment practice on older workers; and
  • The degree of the harm to individuals within the protected age group in terms of both the extent of injury and the numbers of persons adversely affected, as well as the extent to which the employer took steps to reduce the harm in light of the burden of undertaking such steps.

Consideration of arrest and conviction records

According to EEOC’s 2012 guidance titled Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 , an employer’s use of an individual’s criminal history in making employment decisions may, in some instances, violate the prohibition against employment discrimination under Title VII of the Civil Rights Act of 1964, as amended.

The Guidance discusses the differences between arrest and conviction records. The fact of an arrest does not establish that criminal conduct has occurred, and an exclusion based on an arrest, in itself, is not job related and consistent with business necessity.

However, an employer may make an employment decision based on the conduct underlying an arrest if the conduct makes the individual unfit for the position in question. In contrast, a conviction record will usually serve as sufficient evidence that a person engaged in particular conduct. In certain circumstances, however, there may be reasons for an employer not to rely on the conviction record alone when making an employment decision.

According to the Guidance, a violation may occur when an employer treats criminal history information differently for different applicants or employees on the basis of their race or national origin (disparate treatment liability).

An employer’s neutral policy (e.g., excluding applicants from employment on the basis of certain criminal conduct) may disproportionately impact some individuals protected under Title VII and may violate the law if not job related and consistent with business necessity (disparate impact liability).

There are two circumstances in which the Commission believes employers will consistently meet the “job related and consistent with business necessity” defense. Those circumstances are:

  • The employer validates the criminal conduct exclusion for the position in question in light of the Uniform Guidelines on Employee Selection Procedures (if there are data or analysis about criminal conduct as related to subsequent work performance or behaviors); or
  • The employer develops a targeted screen considering at least the nature of the crime, the time elapsed, and the nature of the job. The employer’s policy then provides an opportunity for an individualized assessment for those people identified by the screen to determine if the policy, as applied, is job related and consistent with business necessity. (Although Title VII does not require individualized assessment in all circumstances, the use of a screen that does not include individualized assessment is more likely to violate Title VII.)

Best practices

EEOC’s Guidance outlines examples of best practices for employers that are considering criminal record information when making employment decisions. Employers should eliminate policies or practices that exclude people from employment on the basis of any criminal record.

In addition, employers should train managers, hiring officials, and decision makers about Title VII and its prohibition on employment discrimination. Employers should develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct, including:

  • Identify essential job requirements and the actual circumstances under which the jobs are performed.
  • Determine the specific offenses that may demonstrate unfitness for performing such jobs. Identify the criminal offenses on the basis of all available evidence.
  • Determine the duration of exclusions for criminal conduct on the basis of all available evidence. Include an individualized assessment.
  • Record the justification for the policy and procedures.
  • Note and keep a record of consultations and research considered in crafting the policy and procedures.

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