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Normally when we talk about background screening compliance, we have a great deal to say about the Fair Credit Reporting Act (FCRA) and how it regulates the background screening process. In this segment, I want to cover another important area of compliance that runs hand-in-hand with the FCRA when conducting background checks - The Equal Employment Opportunity Commission (EEOC).
As HR professionals are very much aware, the EEOC is charged with administering and enforcing civil rights laws in the workforce. They play an integral part in interpreting laws like the the Civil Rights Act, Americans with Disabilities Act (ADA), Age Discrimination in Employment Act (ADEA), and several others. The EEOC also has guidance on the use of background checks for employment purposes.
“Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964” (No. 915.002) – approved April 25, 2012
In 2012, the EEOC consolidated its guidance on the use of arrest and conviction records in the hiring process into one document. This document outlines the EEOC’s interpretation of how information within background checks can be used in a discriminatory way. While this very expansive subject may be outside the scope of this post, we are able to highlight the main points that employers should know about when conducting background checks.
Information from any source cannot be used to discriminate in violation of federal laws
One of the most basic tenants of the EEOC’s guidance on the use of background checks is that information contained within a report cannot be used to discriminate against someone based on their protected class status. A protected class is any group of people that is protected by the anti-discrimination laws enforced by the EEOC. This commonly includes groups based on race, gender, national origin, religion, or age.
According to the EEOC guidance of 2012, an employer violates Title VII if they treat the criminal history of one individual differently than another based on race or national origin. This again hits on the point that your organization’s screening policy needs to be consistent and well outlined. Disparate treatment cases can also arise when a background check includes information that gives an employer information that identifies an individual as a member of a protected class, if it impacts their decision to hire an individual.
If an organization’s employment screening policy negatively impacts a protected group disproportionately and fails to prove that the practice is job related and consistent with business necessity, then it is considered disparate impact. The organization’s policy can be neutral in nature, and still be discriminatory within the realm of disparate impact.
The EEOC offers these suggestions as ways to ensure that your background screening practices don’t discriminate against protected groups.
Apply the same standards for everyone
For each position, make sure that everyone is given the exact same screening procedure. If you are hiring for a new account management position, each person must be given the same opportunity for employment. If your policy is to conduct a background check on an applicant once they’ve completed an interview, you must apply that same standard for each applicant. You can’t selectively choose who to conduct a background check on based on a suspicion.
The Decision Matrix
In order to apply the same relative standards to each applicant the EEOC suggests using a hiring decision matrix to help set a clear parallel between your organization’s policy towards the different types of criminal offenses and how they would affect different positions and levels of employment.
A simple matrix will have the different positions or tiers in your organization listed on the x-axis. The categories and levels of offenses would be listed on the y-axis. The individual deciding which offenses are acceptable and which require review would mark each section where the position and offense meet in green or yellow - green for acceptable, yellow for “needs review.”
Consider each applicant on a “case-by-case” basis
So, why is there no red category in a decision matrix?
In order to maintain fair standards across the hiring process, the EEOC advises that each instance in which a criminal record may preclude an individual from a position, they should have their case reviewed on an individual basis. This means no automatic exclusions.
In each of these instances, they advise that you consider the job-relatedness and consistency with business necessity of the offense. There are three main factors for you to consider when determining if an exclusion is job related:
Nature and gravity of the offense
How much time has passed since the offense
Nature of the job held or sought
“Ban the Box” considerations
The “Ban the Box” movement focuses on removing questions from job applications that ask “have you ever been convicted of a crime?” One of the driving motivations behind this is the argument that checking “yes” on the criminal convictions box often serves as an automatic exclusion - going against the EEOC’s guidance on the subject.
Exceptions to the rule
While the EEOC discourages employers from having automatic exclusions in their employment screening process, there are some instances where other laws and industry regulations contradict this message.
In most instances, positions that are subject to federal regulations that carry employment restrictions based on criminal histories are not preempted by Title VII of the Civil Rights Act. In these instances the EEOC’s guidance would be superseded by these laws - e.g. FDIC regulations for bank employees. However, if an employment exclusion goes beyond the federally mandated restrictions, it would be subject to analysis.
State and local laws or regulations are preempted by Title VII if they “purport to require or permit the doing of any act which would be an unlawful employment practice.” As such, if an employer's exclusionary practice cannot be proven to be job related and consistent with business necessity, the fact that it was adopted to comply with state or local law doesn’t shield the employer from Title VII liability.
Use of Arrest vs. Conviction Records
The EEOC strongly discourages the use of arrest records in a screening program as an arrest record doesn’t necessarily mean that the individual was convicted of a crime. If there isn’t a conviction record associated with the same incident, an employer shouldn’t imply that the person with the arrest record actually committed the crime. As a background screener, we will not provide arrest information on applicants or employees where a criminal conviction is not present.
Unlike the Fair Credit Reporting Act, which is relatively rigid in its interpretation, EEOC guidance on the use of arrest and conviction records can be more challenging to interpret on an individualized basis. For more than general guidance on the subject, it is very important to seek legal guidance from an attorney versed in employment law. Whether you are creating your first draft of a decision matrix or creating a new policy, it’s best to get a second opinion.
Once you’ve created a polished background screening policy, you’ll need to train those who will be involved in the hiring process on how to follow it. For managers and supervisors, it’s especially important to train on how to appropriately interpret background information in a way that doesn’t violate your policy.Consistency is key. You don’t want to have your managers independently determining the severity of different offenses.