Individualized Assessment: What is it and how do I deal with it?

albert-einsteinOn 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!


The New EEOC’s Enforcement Guidance – The good and the bad

The New EEOC’s Enforcement Guidance; The good and the bad

Today, April 25, 2012, the U.S. Equal Employment Opportunity Commission issued its Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964. The update has been years in the making and strives to mitigate the disparate impact that can occur to protected classes when screening practices are not properly devised.

As with most things, we take the good with the bad. This article is going to briefly discuss from a macro level, the good derived from the revision as well as some subtle negative impacts.

The Good—The “Enforcement Guidance” as it is properly entitled, differs from earlier policy statements from the EEOC in that it provides 1) specific examples, 2) explains how the EEOC analyzes, investigates, and determines to litigate infractions, and 3) provides best practices for employers to consider when making employment decisions involving criminal records.

It is important to note that the EEOC has not fundamentally changed any previous positions. The importance of this is that there is essentially nothing brand new outlined in the Enforcement Guidance. The new guidelines seem to persuade employers to develop and implement what is referred to as an “individualized assessment” of candidates.

Generally speaking, an employer must develop, document, implement, and train its employees to adhere to a policy which includes three main points.

1.   The Green Factors

  • The Nature and Gravity of the Offense or Conduct
  • The Time that has passed since the offense, conduct, and or completion of sentence
  • The Nature of the job held or sought

2.  Individualized assessment—Meaning the employer informs the individual of a possible exclusion based on past criminal conduct and provides an opportunity for that individual to     demonstrate the exclusion does not properly apply. Some factors to consider from the individual are;

  • Facts not included in the criminal report
  • Facts/circumstances surrounding the offense/conduct
  • Number of offenses in total
  • 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 offense/conduct
  • Rehabilitation efforts like education/training
  • Employment/character references
  • If the individual is bonded under federal, state, or local programs

3.  Develop a policy of Criminal Conduct Exclusion that is Job Related and Consistent with Business Necessity

  • Develop a written policy
  • Include associated documentation/reports/statistics/articles
  • Define criminal report type including time frame
  • Define job type (s) for which criminal background (consumer report) was conducted
  • Training/guidance documents
  • Consider the job type. Outline the description of duties, relevant oversight, daily tasks, any federal/state/industrial requirements, and what human interaction is involved

To summarize the good, the EEOC has provided better clarification of guidelines including examples and suggestions for avoiding any discriminatory practices.

The bad is fairly succinct. There’s no room for ignorance and discriminatory practices will be litigated. One only need to look at the EEOC home web page to see numerous recent Title VII suits proudly displayed like hunting trophies mounted in a gamesmen’s room.

VICTIG will be hosting a webinar Tuesday, May 1st, 2012 to discuss the new guidance and answer any questions that you have. Register for this free webinar here.

Here are some links for you to look at.

Here are the numbers

There has been a lot of discussion around the county about pre employment criminal searches.  The main discussion is about the basic database search that many employers do and weather it is a effective and thorough search.  We subscribe to numbers websites and newsletters that updates us on State and Federal laws, FCRA discussions and CRA compliance rules and regulations.  One of the many is “The Public Record” powered by BRB publication.  I want to throw out some quotes and statistics from this Aprils update.   Even though some of the follow statements are not about database searches I think they are very interesting.

  • Overall, only 65% of the courts holding felony records provide online access.  Also, many states will not sell their data in bulk electronic format.
  • Here is an example of how you can be mislead with online searches.  There is no instant online statewide search in AZ since the 2nd largest county is not online, but many firms tout an instant service.  In MN, there are cases not on the statewide online system but will appear on the courthouse terminal system.
  • With the U.S. Department of Justice there was a back log of 1.6 million unprocessed or partially processed court dispositions not entered into the states criminal history database.
  • There is a %13.26 overall hit ratio on criminal record name searches.

Here are some interesting numbers:

  • The national averages for the price of a state driving record is $8.39.  To purchase a “nationwide MVR record” would cost 427.73.
  • There is only %65 of felony courts in the US that provide online access for searching.
  • There are 92 villages, towns or cities in the US named Salem.  40 of these places are located in two or more ZIP codes.
  • There are 535 municipal courts in New Jersey.
  • We have 1,076 primary civil courts in the US that will no permit court personnel to perform a record search for the public.
  • There are 5,665 state licensing boards that have a direct website to search for registrants and licensees.
  • Approximately 423,200,000 unassigned social security numbers were converted to rhe random assignment pool in June 2011.  there are approximately 4 million biths annually in the US. So accounting for the population growth and immigrants, it will prbably be at least 90 years before we run out of numbers.

The main reason we wanted to share this was to help people understand that there are holes in background screening.  And to not rely on a simple online or database search if you want to do good pre employment background screening.