By Aoife Gorey
April 25th 2012 saw a shocking announcement that will affect the careers of millions of workers.
The Equal Employment Opportunity Commission (EEOC) issued a new Enforcement Guidance on criminal background checks. Despite heavy concerns from the Chamber of Commerce and background check industry professionals, the new guidance was passed in a 4-1 vote by Commissioners.
The Guidance states: “Under Title VII of our civil rights laws, employers may not deny employment based on a conviction except when the offense is job related.” Supporters of the ruling feel that employers can protect their business interests and safety on the job, whereas qualified workers with minor convictions can have a fair shot at a job opportunity.
According to a case study by the National Employment Law Project, over 65 million American adults carry an arrest or conviction on their record. 90% percent of companies have reported using criminal background checks for hiring decisions, some even specify on the job description, “You must not have any felony or misdemeanor convictions on your record. Period.”
Therefore, these 65 million people could possibly be under the same impression, that they “need not apply,” only 10% of them may be considered for employment!
For years background checks have played a vital role in determining safety and security for all employees in a workplace. Some studies debate whether or not barring people with a record is compromising public safety, as hiring these people into stable employment actually reduces crime rates.
According to the EEOC Title VII, “The EEOC enforces Title VII, which prohibits employment discrimination based on race, color, religion, sex, or national origin. Having a criminal record is not listed as a protected basis in Title VII. Title VII liability for employment discrimination is determined using two analytic frameworks: “disparate treatment” and “disparate impact.” Disparate treatment is discussed in Section IV and disparate impact is discussed in Section V.”
The Guidance outlined three ‘Green factors’ for employers to base their hiring decisions of prospect employees with a criminal record on, these are:
- The nature or gravity of the offense or conduct
- The time elapsed since the offense, conviction; and/or completion of the sentence
- The nature of the job sought or held.
Follow best practices for employers to ensure your organization does not violate this new Guidance:
- Eliminate policies or practices that exclude candidates from employment based on a criminal record
- Train managers, HR staff and decision makers on Title VII and its prohibition on employment discrimination
- Develop new tailored policies and procedures for screening applicants for criminal conduct
- Identify job requirements and actual circumstances under which jobs are performed
- Determine the specific offenses that may demonstrate unfitness for performing such jobs
- Identify criminal offenses based on all evidence
- Determine the duration of exclusions for criminal conduct based on evidence
- Include an individualized assessment
- Record all consultations, procedures and justification
With or without a background check, you can still analyze a candidates work-related values. The Step One Survey II® is a brief pre-employment assessment that measures an individual’s basic work-related values. We closely examine: employment history, integrity, personal reliability, and work ethic. This pre-employment assessment is used primarily as a screening tool early in the candidate selection process.