Clarifying the Employer Burden Under EEOC Enforcement Guidance

The heated debate over the legitimacy and fairness of the EEOC’s Enforcement Guidance (No: N-915-.002) issued back in April of 2012, continues to broil. From an employer’s perspective, the phrase “between a rock and a hard place” springs to mind.

On its surface, the EEOC Enforcement Guidance appears to severely limit an employer’s use of background screening results in hiring decisions and thus leaving them unprotected in the treacherous waters of negligent hiring lawsuits. Once we take a breath and tear it apart, however, we find that many of the FCRA compliance and best practices you already have in place are merely reiterated. True, the EEOC has added quite a bit of meat to the bones of these practices, but at least we are already in a good starting place.

The Green Factors and Adverse Action

First, The EEOC has long since cited the ruling in Green v. Missouri Pacific Railroad 549 F.2d 1158 (8th Cir. 1977) in making employment decisions. The “Green Factors” to consider are:

  1. The nature and gravity of the offense
  2. The time that has passed since the offense and/or completion of the sentence
  3. The nature of the job held or sought

In the new EEOC enforcement guidance the EEOC states that employers may perform a “targeted screen” and use the above criteria alone to make decisions as long as it shows it has been “narrowly tailored to identify criminal conduct with a demonstrably tight nexus to the position in question.”

For example, if you are hiring for a driver’s position and the applicant has multiple, recent DUIs, you’re probably in good standing with the EEOC guidelines to deny employment to that applicant without any further consideration.

Introducing: Individualized Assessment (Just to Keep things Interesting)

Here’s where it gets tricky, though. The new guidelines insist that an “individualized assessment” be conducted on every applicant in danger of being denied employment (or promotion, transfer, etc.) not meeting the narrow criteria of a targeted screen. While the individual assessment mirrors much of the adverse action process already stipulated in the FCRA, it goes even further. In addition to giving the applicant a copy of the report and a reasonable time to explain or dispute its findings, employers now are tasked with considering;

  • Evidence that the applicant performed the same type of work at a different employer post-conviction with no incidence of misconduct
  • The age of the applicant at the time of the crime or release from prison
  • How many convictions the applicant has
  • Character references
  • Rehabilitation efforts
  • Whether the applicant is bonded

And let’s not forget that employers still need to be wary of disparate impact and conscientious of business necessity in all employment decisions.

Now What?

It’s a balancing act that is becoming increasingly difficult for employers and HR teams in particular; especially as rules and new legislation constantly shifts. Clarifacts takes compliance with all federal, state, and local laws very seriously and while the EEOC guidance is simply that; guidance, we know all too well the lengths the EEOC, prosecutors, and plaintiff’s will go to in making a case stick. With that said, Clarifacts will continue bringing you Industry Insights and resources to help you keep your footing. And, of course, always keep in communication with your attorney when altering your employment screening policies.

If you have questions specific to a screening Clarifacts has provided you, please call us at 1.800.318.0553. We’re here to help!

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