Assessing Criminal Records in Employment Decisions

3 min read
Sun, May 15, 2016

The Obama administration has recently proposed that federal agencies prohibit all inquiries about an applicant's criminal background until after the employer has extended a job offer. The Ban the Box initiative and the growing support behind the initiative allow those with criminal histories a fair chance at employment. Four years ago, the EEOC also asked employers to consider specific guidance when assessing an applicant's criminal history.

Employers recognize that they must make changes with regards to criminal background checks and hiring practices but many aren't sure where to begin.

EEOC & Ban the Box

Often those negative marks in a criminal history were the result of a single bad decision in the applicant's youth. With employers asking up front if job seekers had a criminal history, many potentially credible job seekers were not offered a fair chance at employment. This discrimination has lead to a widespread support of delaying the inevitable "criminal history" question until after a job has been offered. 

The Ban the Box initiative began in the late 1990's and has slowly gained widespread national support. Advocates claim that banning the box is necessary due to the number of Americans with criminal records due to drug crimes. The challenge for employers has been staying aware of the ban the box regulations that affect them. New laws are being added daily, including President Obama's recent proposal for federal agencies, and the administration has been urged to make the initiative a nationwide governance.Job-Related-Background-Checks

In 2012, the EEOC didn't go so far as to "ban the box", however the agency did recommend that employers refrain from asking about prior criminal history as a best practice when hiring employees. The EEOC Enforcement Guidance stated that employers use of an applicant's criminal history may violate Title VII under the Civil Rights Act of 1964. The guidance asked the employers use a three-factor test when evaluating an applicant's criminal history:

  • Evaluate the nature and gravity of the crime
  • Evaluate the time elapsed since the conviction of the crime or completion of the sentence
  • Evaluate whether the crime affects the nature of the job for which the applicant is being considered

The Enforcement Guidance also states that an arrest record cannot be used to deny employment. However, if the conduct that lead to the arrest would affect the job, then employers could use the arrest record. If a job seeker passes the three-factor test, then the employer must conduct an individualized assessment of the applicant.

Individualized Assessment

When an applicant or employee is being considered for a job and they have a prior criminal history, the employer must then inform and provide the job seeker with an opportunity to explain the results of the criminal background check. At this point, the hiring process can get quite complex unless the employer has a specifically written background screening policy and decision matrix to guide them through it. 

Criminal background screening policy - A best practice for employers is to have a succinct screening policy as it relates to the job descriptions and functions. (VeriFirst has templates and an ebook to help create this policy for download here.) This policy informs how certain criminal offenses might affect particular job functions.

Decision Matrix - Secondly, employers must have a job-specific decision matrix that allows hiring managers to know when certain criminal convictions disqualify applicants from the job. 

As employers implement best practices of EEOC guidance and Ban the Box regulations, including the above policies, there will be more consistency when considering prior convictions of applicants as they relate to the position in which the applicant is applying. All hiring managers should also be trained and well-versed on EEOC guidance and ban the box regulations in order to avoid Title VII discriminations and other potential litigation.

VeriFirst has created several templates and has over a decade of experience assisting employers in their criminal background screening and hiring decisions. Our customer service is also second to none. Let us know how we can help.

EEOC Background Screening Decision Matrix Template


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