According to the Society for Human Resource Management (SHRM), nine out of ten employers conduct background screening on candidates when hiring. It’s clear employers want to make safe hiring decisions. This is even more important because of the growing number of American workers that have a criminal history. In fact, the Bureau of Justice reports that almost one-third of working Americans have a criminal history on file — and this number is continuing to rise.
Given these statistics, it’s inevitable you’ll find a candidate with criminal history when conducting background screening. Some risk-averse employers may make the common mistake of immediately dismissing candidates with any criminal record. However, a blanket policy eliminating an applicant just for having any criminal history is illegal according to the Equal Employment Opportunity Commission (EEOC).
The EEOC enforces federal laws that makes it illegal to discriminate against a candidate or employee based on many factors, including race and ethnicity. Because there is a disproportionate amount of minorities with a criminal record, the EEOC recognized that background checks can have a disparate impact. In the Green v. Missouri Pacific Railroad decision, the court found “a complete bar on employment based on any criminal activity, other than a traffic violation, unlawful under Title VII.”
Because of this ruling, the EEOC cites the “Green Factors” in their Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions. The Green Factors require a company to demonstrate that “its policy or practice is job-related for the position in question and consistent with business necessity.” An employer must evaluate a candidate’s criminal history with the following principles:
● The nature and gravity of the offense or conduct.
● The time that has passed since the offense, conduct and/or completion of the sentence.
● The nature of the job held or sought.
To eliminate a candidate from consideration, the employer must show a clear connection why someone’s criminal record makes them unsuitable for the position they apply for. For example, a history of fraud is a valid reason not to hire a candidate for a financial position. However, denying this candidate because of speeding tickets may not be consistent with business necessity.
If a candidate passes the Green Factors, an individualized assessment must be conducted by the employer. As part of this, a candidate must have the opportunity to explain the results of the background check to the employer. When evaluating a candidate, the employer must show that Green factors were applied to the hiring process.
Solutions To Be Compliant When Making Hiring Decisions
There are three powerful ways employers can streamline this process:
- Criminal background screening policy. It’s another common mistake not to have a written policy. However, it’s one of the most important things an employer can do to avoid liability with the EEOC. Through having a written screening policy, it’s easier for an employer to prove how criminal offenses might impact specific job functions.
- Decision matrix. Because a blanket policy excluding all candidates with a criminal history is illegal, a decision matrix will help you apply the Green factors to candidates. A decision matrix shows what type of criminal convictions would disqualify job candidates for specific positions. Because a matrix allows employers to apply a consistent standard to candidates, liability to the employer is reduced.
- Get help from screening experts. Federal regulations are complex and constantly evolving — and failure to comply can lead to million dollar lawsuits. Aside from FCRA and EEOC laws, there are also regulations in specific states that affect background screening. It’s beneficial to seek industry experts that can help your company stay compliant. After seeking expert legal counsel, it’s helpful to have a screening company that understands these complexities.