Criminal Conviction Exclusion Policies and Individualized Assessments
Please note that the information contained in this blog is being provided for informational purposes only and should not be construed as legal advice. Please consult your legal counsel to ensure that your background screenings comply with all federal, state, and local laws.
Please note, this blog focuses on the EEOC’s Guidance and does not consider state and local laws that may impact an employer’s criminal conviction exclusion policy
In our previous blog, we analyzed the Equal Employment Opportunity Commission’s (EEOC) information document entitled, “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act” (Guidance).
What is the additional step that employers should include in their criminal conviction exclusion policy?
The Guidance states that in some circumstances, a criminal conviction exclusion based on a targeted screen alone may be sufficient to escape Title VII liability. These circumstances include those in which there is a demonstrably tight nexus between the conviction and the position in question. For example, the exclusion of an individual with a recent conviction involving sexual conduct with a child likely has such a tight nexus to the position of a day care teacher that an employer can justify only implementing a targeted screen using the Green Factors. However, generally, there is more work to be done! Indeed, the Guidance also recommends that employers conduct an individual assessment on any individual who may be excluded per the targeted screen.
What is an individualized assessment?
The Guidance describes an individualized assessment as a three-step process.
- The employer informs the individual that they may be excluded because of a criminal conviction;
- The employer provides the individual with an opportunity to demonstrate that the exclusion does not properly apply to them; and
- The employer considers whether the individual’s additional information shows that the policy as applied is not job related and consistent with business necessity.
Essentially, the individualized assessment process allows the individual who may be excluded due to a conviction to present their unique situation as it relates to the criminal conviction. Afterward, the employer, now having more complete information on the individual and the situation, will assess all the information to determine if the special circumstances warrant an exception to the preliminary finding that an exclusion may be necessary.
What types of additional information should be considered as a part of the individualized assessment?
The Guidance lists the following types of additional information that can be used to determine whether the policy as applied is not job related and consistent with business necessity:
- The facts or circumstances surrounding the offense or conduct;
- The number of offenses for which the individual was convicted;
- Older age at the time of conviction, or release from prison;
- Evidence that the individual performed the same type of work, post conviction, with the same or a different employer, with no known incidents of criminal conduct;
- The length and consistency of employment history before and after the offense or conduct;
- Rehabilitation efforts, e.g., education/training;
- Employment or character references and any other information regarding fitness for the particular position; and
- Whether the individual is bonded under a federal, state, or local bonding program.
How can employers implement the individualized assessment?
There are several time periods during the hiring process in which the employer can provide an individual with the opportunity to provide additional information in relation to a criminal conviction to demonstrate that they should not be excluded from a position. Whatever time period is chosen, it must occur before the individual is excluded from the prospective position. Furthermore, there are a variety of methods an employer can use to obtain the additional information. Employers should consult with their legal counsel regarding when and how to administer the individual assessment. Still, by way of example, one option an employer has is to send the potentially excluded individual an individualized assessment questionnaire contemporaneously with the pre-adverse action notice required by the Fair Credit Reporting Act. The questionnaire should ask the individual to provide the information listed in the above bullet points. Afterwards, the employer must consider whether the additional information shows that the policy as applied is not job related and consistent with business necessity. InCheck offers its clients sample individualized assessment questionnaires and can assist clients in incorporating the individualized assessment questionnaire into their background screening process.
If an employer wants to put themselves in the best position to reduce the chances that its criminal conviction exclusion policy will violate Title VII, they not only must employ a targeted screen utilizing the Green Factors, but they should also strongly consider implementing a case-by-case individualized assessment. In doing so, the employer can increase the chances that its criminal conviction exclusion is job related for the position in question and a business necessity.
Here at InCheck, compliance is a top priority, and we strive to keep clients well-informed of the various requirements of federal, state, and local laws and regulations which must be followed. While we cannot provide legal advice, we are always happy to explain to our clients our understanding of various laws’ requirements for informational purposes. Additionally, we can provide our clients with sample documents (e.g., individualized assessment questionnaire) and white papers on various topics. Moreover, we are always available to discuss our client’s compliance issues via telephone or email.
Please feel free to call (414- 727-1718) or email (firstname.lastname@example.org) us today for more information on how we can help you with your background screenings!