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EEOC & Criminal Records in the Employment Screening Process

In today’s fast moving world, we understand that it is difficult to remain absolutely current with the ever changing laws and regulations placed upon the shoulders of employers. As your trusted risk advisor, we are committed to keeping our eyes on the legal radar screen to alert you of changes that can impact your business operations.

EEOC and Criminal Records in the Employment Screening Process
The EEOC (Equal Employment Opportunity Commission) enforces Title VII of the Civil Rights Act of 1964 which prohibits employment discrimination based on race, color, religion, sex, or national origin.

On April 25th, the EEOC issued new guidelines concerning the use of criminal records in the employment screening process as they were concerned that employers were unintentionally discriminating against individuals with arrest and conviction histories.

The EEOC stated that although Title VII of the 1964 Civil Rights Act does not bar use of criminal background checks, employers may violate Title VII if they intentionally discriminate among individuals with similar criminal histories or if their policies have a disproportionate adverse impact based on race, national origin, or other protected category, and employers cannot demonstrate “business necessity.”

What was the EEOC requirement?
The EEOC has required that employers consider the likelihood of whether the applicant actually engaged in the alleged conduct as well as the following “Three Green Factors” when evaluating criminal records:

  • Nature of the offense
  • Time elapsed since the offense occurred
  • Nature of the job (level of supervision, interaction with co-workers or the public, whether working with vulnerable populations, etc.)

The EEOC clearly states that “the fact of an arrest does not establish that criminal conduct has occurred. However, an employer may make an employment decision based on the conduct underlying the arrest if the conduct makes the individual unfit for the position in question. The conduct, not the arrest, is relevant for employment purposes.” Further “a conviction will usually serve as sufficient evidence that a person engaged in particular conduct.”

What has the EEOC changed?
The EEOC now also requires employers to prove whether an individual’s conduct is job-related and consistent with business necessity in one of two ways:

  • Complete some type of validation study which could be both time-consuming and expensive.
  • Develop a “screening matrix” that provides an overview of:
    • the “Three Green Factors”
    • the likelihood that the individual actually engaged in the conduct alleged
    • an “individualized assessment” which would allow the individual an opportunity to demonstrate that the exclusion should not be applied to them by providing details regarding the conduct in question
    • consideration by the employer as to whether the additional information warrants an exception.

What does the EEOC suggest for the individual assessment?
The EEOC suggests that the individual assessment include the following information for consideration:

From Background Check:

  • Whether the criminal record information is accurate
  • The number of offenses for which the applicant was convicted
  • Age at the time of conviction or release from prison
  • Whether the individual is bonded under a federal, state, or local bonding program

From Application and/or Resume:

  • Evidence that the applicant performed the same type of work – post conviction – with the same or a different employer, with no known incidents of criminal conduct
  • The length and consistency of employment history before and after the offense or conduct
  • Rehabilitation efforts (e.g. education/training)
  • Employment or character references and any other information regarding fitness for the particular position

From Interview with candidate

  • The facts or circumstances surrounding the offense or conduct in question allowing the applicant the opportunity to explain why the conduct should not exclude him/her from the position in question

The EEOC does not provide specific guidelines on how to conduct the individual assessment, but one approach offered would be to include the request for additional information in the pre-adverse action notice that is required under the Fair Credit Reporting Act.

Further Suggestions Regarding Criminal Records……

  • Eliminate policies or practices that exclude people from employment based on any criminal record
  • Train managers, hiring officials, and decision makers about Title VII of the Civil Rights Act of 1964 and its prohibition on employment discrimination

Developing a Policy

  • Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct.
    • Identify essential job requirements and the actual circumstances under which the jobs are performed
    • Determine the specific offenses that may demonstrate unfitness for performing such jobs
    • Determine the duration of exclusions for criminal conduct based on all available evidence
    • Record the justification for the policy and procedures
    • Note and keep a record of consultations and research considered in crafting the policy and procedures

Questions about Criminal Records

  • When asking questions about criminal records, limit inquiries to records for which exclusion would be job related for the position in question and consistent with business necessity.


  • Keep information about applicants’ and employees’ criminal records confidential. Only use it for the purpose for which it was intended.

Any business utilizing background checks in their employment process is subject to this new guidance. For more insight, join us for a webinar hosted by “HR That Works” where attorney Laurie Petersen from the Worklaw Network firm Lindner Marsack will review these new requirements:

Busted! But Does it Matter?
A Review of the Recent Guidance on Arrest/Conviction Records from the EEOC
Tuesday, July 24, 2012 2:00 pm – 3:00 pm EDT

Also, following are links to assist you in obtaining a greater understanding of this updated requirement:

We recommend that you consult with legal counsel in both the creation and revision of your screening policies.