Posted by Chris Bilko on Thu, May 10, 2012
Has your company taken action to insure you are in compliance with the new EEOC Guidelines? Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions
The EEOC (Equal Employment Opportunity Commission) issued it's Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 on April 25, 2012. The new guidance consolidates and supersedes the policy statements issued by the commission in 1987 and 1990. The Guidance focuses on employment discrimination based on race and national origin. The most important parts to note is that the guidance discusses the two following topics: Arrest vs. Conviction Records, and Disparate Treatment and Disparate Impact Analysis under Title VII.
Arrest and Conviction Records
As stated by the guidance, "The fact of an arrest does not establish that criminal conduct has occured, and an exclusion based on an arrest, in itself, is not job related and consistent with business necessity. However, an employer may make an employment decision based on the conduct underlying an arrest if the conduct makes the individual unfit for the position in question. In contrast, a conviction record will usually serve as sufficient evidence that a person engaged in particular conduct. In certian circumstances, however, there may be reasons for an employer not to rely on the conviction record alone when making an employment decision."
Disparate Treatmeant and Disparate Impact Analysis Under Title VII
As stated by the guidance, "A violation may occur when an employer treats criminal history information differently for different applicants or employees, based on their race or national origin. An employer's neutral policy (e.g., excluding applicants from employment based on certain criminal conduct) may disproportionately impact some individuals protected under Title VII, and may violate the law if not job related and consistent with business necessity.
What does this mean for you the employer?
This means that your company should develop a matrix that weighs the crime against the job that the applicant is applying for. For example, company policy should differ for applicants applying for managerial positions vs. clerical positions vs. maintenance positions. After the matrix has been created for each job type. The company needs to stay consistant for each position to insure that they do not discriminate from one applicant to another. It is important to note that your company should NOT have a deny all policy. Meaning that if any conviction record is found during the investigation that you deny the applicant no matter the level or type of the offense. Their is alot to consider during the employment background screening process. VeriFirst is here to help.
All of VeriFirst's clients receive a VeriFirst Compliance Double Check on each applicant free of charge. VeriFirst takes pride in knowing that all of our clients will have the tools necessary in staying compliant with the FCRA and the EEOC. Please contact us for more information to see how VeriFirst can help your company stay compliant.