The EEOC’s recent guidance concerning employers’ use of criminal background checks on job applicants comes down to two words: Individual assessment.

The bottom line of the agency’s recently released “enforcement guidance”: Blanket policies that automatically reject job candidates with criminal records are illegal.

The rationale: Such policies have been found to have a disparate impact on minorities, according to the EEOC.

The guidance comes on the heels of a recent settlement between the agency and Pepsi Beverages, which agreed to pay $3.13 million after EEOC investigation found that the criminal background check policy formerly followed by Pepsi discriminated against African Americans in violation of federal anti-bias laws.

One key change

The essence of the guidance: Employers have to make hiring decisions on applicants with criminal histories using three criteria. They are:

  • The nature and gravity of the offense or conduct
  • The time that has passed since the offense or conduct and/or completion of the sentence, and
  • The nature of the specific position.

The new wrinkle, however, is the agency’s “recommendation” that employers go through an extensive “individual assessment” on each candidate.

And that could mean a lot of headaches for HR. Here’s a list of the things EEOC says you should consider:

  • The facts or circumstances surrounding the offense or conduct
  • The number of offenses for which the individual was convicted
  • 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 (such as education or 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.

There is one (rather dim) bright spot here, however — if the applicant doesn’t cooperate by providing the background information the employer seeks, the company can make the hiring decision based on the information at hand.

Best practices

The agency also offers a rundown of suggested best practices for employers using criminal background checks. Here goes:

  • Eliminate policies or practices that exclude people from employment based on any criminal record.
  • Train managers, hiring officials, and decisionmakers about the federal prohibition on employment discrimination.
  • Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct.
  • Identify essential job requirements and the actual circumstances under which the jobs are performed.
  • Determine the specific offenses that may demonstrate unfitness for performing such jobs.
  • Identify the criminal offenses based on all available evidence.
  • Determine the duration of exclusions for criminal conduct based on all available evidence.
  • Include an individualized assessment.
  • Record the justification for the policy and procedures.
  • Note and keep a record of consultations and research considered in crafting the policy and procedures.
  • Train managers, hiring officials, and decisionmakers on how to implement the policy and procedures consistent with the law.
  • When asking questions about criminal records, limit inquiries to records for which exclusion would be job related for the position in question and consistent with business necessity.
  • Keep information about applicants’ and employees’ criminal records confidential. Only use it for the purpose for which it was intended.

Got that? Good luck.

The EEOC also has posted a FAQ page on its website. You can find it here.


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