On Wednesday, April 25th, 2012, the U.S. Equal Employment Opportunity Commission issued what is called the “Enforcement Guidance,” which is the Commissions first official direction on the matter of utilizing criminal records as related to Title VII of the Civil Rights Act of 1964.
As mentioned in our previous blog post, fundamentally, nothing has changed from the Commissions previous stance on discrimination, disparate treatment and disparate impacts. The one new item that seems to have most people at a bit of a loss is the notion of Individualized Assessment.
Individualized Assessment, as defined by the EEOC is “an employer informs the individual that he may be excluded because of past criminal conduct; provides an opportunity to the individual to demonstrate that the exclusion does not properly apply to him; and considers whether the individual’s additional information shows that the policy as applied is not job related and consistent with business necessity.” Essentially, it allows the individuals to make a case for themselves including potential circumstances and efforts of the individuals. Some of the potentially relevant evidences presented by the individuals could include;
- Facts or circumstances surrounding the offense/conduct
- Number of offenses for which the individuals were convicted
- Age at time of conviction
- Evidence that the individual performed the same type of work, post conviction, with the same or different employer, with no known incidents of criminal conduct
- Length and consistency of employment history before and after the offense/conduct
- Rehabilitation efforts, education/training
- Employment or character references
- Potential that the individuals will be bonded under a federal, state, local program
So, why is this a big deal? Simply because of this statement made in section B-8 of the EEOC’s Enforcement Guidance; “Title VII does not NECESSARILY require individualized assessment in ALL circumstances. HOWEVER, the use of individualized assessment can help employers AVOID Title VII liability by allowing them to consider more complete information on individual applicants or employees…” If you cannot catch the undertones of this statement, let me help you understand it. USE INDIVIDUALIZED ASSESSMENT!
Contrary to most of my colleagues within the industry, I think this suggestion is a good thing and is really not that big of a deal. After reading and hearing some of the commentary from employers, employment organizations, and the background screening industry, you would think the world has come to an end as we know it and now the unemployment rate is going to sky-rocket because of this unnecessary burden placed on the employment sector and corresponding HR departments which will obviously lead to the decline of the United States as a world economic powerhouse. This is not true. Let me explain why I think this is a good thing and why it is not a big deal.
According to U.S. government Census website (www.census.gov/econ/smallbus.html) the overwhelming majority of employers in the United States have a labor force between 1-499 employees. 80% of all net new jobs are created by small businesses, thus a conclusive argument can be made that the highest impact Individualized Assessment will have will be to the small businesses. I mention this because many people and organizations have already organized vigilante forces with pitchforks to oppose the Individualized Assessment suggestion because of the unnecessary burden it will place on companies to comply with it. The fear is all of the work that will be created to actually listen to any potentially relevant information concerning a criminal finding on a consumer report or background check. For some few companies, I agree that there is potential for increased workflow. However the EEOC has already clearly stated that Title VII does not necessarily require individualized assessment, which means, for those few companies, a well tailored targeted exclusion policy complies.
In addition, the Enforcement Guidance specifically addressed federal prohibitions or restrictions on individuals with records of certain criminal conduct. Meaning, if you are in a specific industry with federal oversight such as law enforcement, banking, insurance, securities, healthcare, etc., you then have a defense for your policy by simply abiding by the guidelines provided to you.
What I like about Individualized Assessment is that it enforces and improves the mission of a good screening policy; to keep and maintain a safe work environment for staff and the community as well as investing in a productive and competent workforce. Below are two common hypothetical scenarios where Individualized Assessment helps.
- A 35 year old candidate applies for a warehouse position. The candidate is a registered sex offender and the company has a policy to not hire registered sex offenders. The company institutes Individualized Assessment and through that process, attains the details of the offense; the individual was 18 at the time of the offense and had a consensual relationship with a 16 year old girl. The candidate has had no subsequent criminal offenses of any kind including traffic tickets since that date.
- A 65 year old employee has been working for a software company for 10 years. By everyone’s account and by regularly scheduled performance reviews, the employee has been outstanding and extraordinary. The software company gets acquired and the new company has a policy to not hire anyone that has a felony in their history. This 65 year old employee was convicted of a felony of accepting stolen property 30 years ago.
In both of these scenarios, Individualized Assessment encourages a process whereby common sense exceptions can be made and that is why I like it. Unequivocally, with the majority of the U. S. labor market working within the small business realm, the guideline does not place unnecessary or an overwhelming burden.
Now the big question; how do we best comply with it? The answer is very simple. By incorporating it into the long established adverse action process outlined in the Fair Credit Reporting Act (FCRA), which you should be doing already, anyway.
The FCRA prescribes that if a potentially adverse decision may be made in whole or in part due to a consumer report or background check that was prepared by a background screening company, that the company disclose that to the subjected individual. In addition, the company should provide a copy of the report to the individual and give the individual time to make sure the report was accurate and explain the process to dispute any incorrect information. That is the perfect time to implement Individualized Assessment.
Adding clarification to your adverse action letters to comply with Individualized Assessment requires very minimal effort. Our upcoming webinar is going to discuss this tactic in great detail including how to develop a written policy and how to leverage a scoring or relevance matrix for compliance. Don’t miss out on this webinar. Reserve your spot here.
Here are some links for you to look at.