The biggest change is the use of individualized assessments.
When the new EEOC Guidance was published on April 25 the biggest change was direction that “Individual Assessments” can help employers avoid Title VII discrimination. This article will provide information about Individual Assessments and their potential impact on your hiring processes to be compliant with the new guidance.
On April 25, 2012, the EEOC stated that Individual Assessment means that a job applicant could be excluded from employment consideration because of criminal conduct in their past. It is the employer’s responsibility to give the applicant an opportunity to demonstrate that exclusion from employment does not apply according to the guidance. The employer can then evaluate and decide if the applicant’s demonstration or additional information shows that the policy is not job related and consistent with business necessity.
While the Guidance states that Title VII does not necessarily require an Individualized Assessment under all circumstances companies may be subject to a challenge by private litigants or the Equal Employment Opportunity Commission if they don’t. In Commissioner Victoria Lipnic’s statement at last week’s meeting the Commissioner noted it is possible for instances to occur that a job applicant’s criminal history is relevant to the position he or she is applying for. Employers can legally eliminate an applicant without further investigation or inquiry. A day care center does not have to ask an applicant to provide details of a conviction of harm against a child. Additionally, a pharmacy may exclude an applicant with a criminal past including conviction for drug related offenses.
The Commission noted individual pieces of evidence an employer should review when deciding if a job applicant should be considered or excluded from employment consideration. This evidence includes:
- The facts regarding the criminal offense or conduct
- How many times offenses occurred and whether or not convictions resulted
- Age when convicted of criminal offense and/or the applicant’s release from incarceration
- Facts demonstrated that the individual has performed either the same type of work or similar work following their conviction and/or incarceration, or have done similar or same work with another employer and the applicant demonstrated no further criminal activity.
- The applicant’s employment background and experience gained either before and/or after the conviction and their conduct.
- The applicant’s rehabilitation efforts, education and job training and experience
- References from former employers and other information with respect to their fitness for the position the applicant is applying for; and
- If the job applicant is bonded through a program at the federal, state or local level.
Changes to the Enforcement Guidance with respect to Individual Assessments will require employers to review their hiring processes when it comes to the criminal backgrounds of job applicants.
Understanding the new EEOC Enforcement Guidance and knowing how it can impact your company’s hiring policies may be critical when it comes to avoiding litigation and fines.
Pre-employ.com attorneys and compliance experts will provide you with an analysis of guidance changes and suggested best practices to ensure your hiring practices are compliant. The report is free. Get your copy of the Pre-Employ EEOC Guidance Report now.Pre-employ.com thanks Seyfarth and Shaw and firm Partners Pamela Devata and Frederick Smith for their contributions to this article.