What are EEOC “Green Factors”?
The EEOC “Green factors” were created around the enforcement of Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits discrimination in the workplace based on race, color, religion, sex or national origin.
The term “Green factors,” came from the Green v. Missouri Pacific Railroad decision, where the court found “a complete bar on employment based on any criminal activity, other than a traffic violation, unlawful under Title VII.”
Employers cannot refuse to hire, or fire, an applicant or employee based on race, color, religion, sex or national origin.
The three Green factors, which are identified by the Eighth Circuit, look at job-relatedness and how the criminal conduct is related to the specific position, include:
1. The nature and gravity of the offense or conduct
2. The time that has passed since the offense or conduct and/or completion of the sentence
3. The nature of the job held or sought
The first factor employers should carefully consider is the nature and gravity of the offense or conduct. Take the act of stealing for example. An applicant who had a petty theft of shoplifting merchandise that was $50 or less may be looked at differently in the hiring decision than someone who has embezzled thousands of dollars.
On that same note, employers may think twice about hiring an applicant who was convicted of assault with a deadly weapon, versus an applicant who got into a small physical altercation. Employers may scrutinize hiring an applicant who sexually assaulted someone versus verbally assaulting someone.
Some employers may also look at the nature and gravity of misdemeanor offenses differently than more severe felony offenses. The classifications of felony and misdemeanor can be helpful but often times could be misleading and even counterproductive. A misdemeanor or two on an applicant’s record might be more relevant to the position for which you are hiring than a felony conviction.
Employers should also consider the amount of time that has passed since the offense or conduct, and/or the completion of the applicant’s sentence. The exact amount of time should be identified in the employer’s policies and procedures.
If an applicant had an offense more than 10 years ago, and hasn’t recidivated since then, an employer may be more willingly to hire them, versus an applicant who has been in and out of prison for the last 10 years.
The Green court did not recommend a specific timeframe for criminal conduct exclusions, however, it did acknowledge that permanent exclusions from all employment based on any and all offenses were not consistent with the business necessity standard.
Finally, employers should consider the nature of the job held or sought. An employer should not only consider the job title, but also the:
• nature of the job duties (access to confidential information, handling money, interacting with customers)
• job functions (talking with customers face-to-face, creating reports on a computer, driving goods from point A to point B)
• circumstances under which the job will be performed (level of supervision, interacting with children or vulnerable adults)
• environment in which the job duties are performed (in a customer’s home, driving across the country, in a secluded building with confidential documents and information)
If an employer concludes that the applicant’s past criminal conduct would affect his or her essential job duties and functions, it should be consistent with what is in his or her policies and procedures. The employer should be able to show that the conduct “bears a demonstrable relationship to successful performance on the job for which it was used.”
For example, if the applicant embezzled money from one of his or her past employers, employers are going to think twice about hiring him or her for a financial position, or a position that deals with proprietary information.
Another example is a position that deals with vulnerable children and adults. Employers may be more willing to hire an applicant who has a criminal traffic violation, if they don’t drive for this position, compared to an applicant who has sexual harassment or drug convictions.
If there was harm caused by the crime, (e.g., physical, monetary, property loss, etc.) the employer needs to evaluate the level of harm the crime could have on their assets, customers, employees and organization as a whole.
In April of 2012, the EEOC introduced a new guidance that discourages blanket rejections of individuals who have been convicted of a crime. This individual assessment section was added to encourage employers to use individualized assessments based on if the criminal offense is job related and consistent with business necessity.
You can learn more about the Individualized Assessment here.