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Thursday, June 21, 2018

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Factors for companies to consider during the criminal screening process

Factors for companies to consider during the criminal screening process

The Equal Employment Opportunity Commission (EEOC) Criminal History Guidance outlines concerns regarding the use of criminal history in the hiring process. The guidance also lists factors to consider prior to excluding an applicant based on a criminal screening, a policy that has led some companies to revisit their background check processes.


In its April 2012 guidance, the EEOC warned employers against enacting a blanket "no hire" policy against an ex-convict or felon. According to the agency, such a policy has a disproportionate impact on minority applicants, therefore violating Title VII  of the Civil Rights Act.


Any reliance on criminal history records that carry an adverse impact on protected groups must be job-related and consistent with business necessity, reports the EEOC. The agency's guidance advises employers to consider:

* The nature and gravity of the offense

* The amount of time passed since the offense or completion of the sentence

* A job candidate's age at the time of conviction

* Evidence showing the individual performed the same type of work post-conviction with no known incidents of criminal conduct

* Rehabilitation efforts such as training or education

* Employment or character references


Class actions filed by the EEOC alleged that the named organizations violated Title VII by not properly conducting the "requisite individualized assessment" on an applicant. For example, a complaint against Dollar General stated that the company considered non-job related convictions, among them reckless driving and failure to file an income tax return, without evaluating other “individualized assessment” criteria, such as the offender's age at the time of the crime.   


More recently, a charge filed with the EEOC against Macy's claimed that the department store's "overbroad" criminal history screening unlawfully turned away qualified minority job seekers. As stated in the filing, Macy's requires applicants to disclose criminal violations over too a long a period, while the categories of violations themselves are too broad. In addition, Macy's criminal background check does not adequately account for "mitigating circumstances," such as whether an applicant has been rehabilitated.


Some companies have expressed skepticism about EEOC's criminal history guidance, largely due to the document being issued with little employer input. Employers have also critiqued the agency on treating the guidance as a regulation or law. Regardless of the legitimacy of these complaints, employers must continue to be wary of the newest regulations when it comes to their criminal screening practices.


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