The 2012 EEOC Enforcement
Guidance on the Use Criminal
Records in Employment Decisions
- Implications, Challenges, and Changes?
May 23, 2012
Presented by
John Beaudette
*The webinar (including audio) will also be available
at www.essclientservices.com
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EEOC 2012 Guidance
NY Times: “must reading for all employers.”
 What Does the New EEOC Guidance Change?
 “Targeted Screen”
 “Individual Assessment”
 Sample Background Check Policy/Matrix
 To ask or not to ask? That is the criminal
record question.
 Other EEOC Best Practice Recommendations
EEOC - Enforcement Agency for Title VII of
the Civil Rights Act of 1964
“The Set-up for 2012 Guidance”

EEOC – long known for taking action against overt, intentional
discrimination based on race, gender, national origin and other protected
categories.

•
Disparate Treatment
EEOC now focusing more on facially neutral selection criteria, such as
credit reports and criminal records

Disparate Impact on certain minority groups

92% of employers subject all or some of their job candidates to criminal
background checks.

African Americans make up 14% of population, but account for 28.8% of
arrests, and 55% of drug arrests (drug use – no ethnic, racial disparity)

A disclosed criminal record reduces chance for a job call back by 50%;
significantly higher for African American men

Ex-offenders unable to get a job are three times as likely to return to prison,
than those who find employment.
EEOC 2012 Guidance:
“JR-BN and the Green Factors.”
•
Conviction constitutes reliable evidence, but still cannot be an automatic
or absolute bar from employment  Disparate Impact
•
Eighth Circuit Court identified these three factors as relevant to assessing
whether an exclusion is job-related and consistent with a business
necessity. (JR-BN)
- Nature and gravity of the offense
- Length of time since offense/release, completion of sentence
- Nature of job sought/held


These became known as the “Green” factors because they were first referenced in the
1975 court case, Green v. Missouri Pacific Railroad
To establish that a criminal conduct exclusion is JR-BN the employer needs to
show that its policy operates to effectively link specific the criminal conduct,
and its dangers, with the risks inherent in the duties of a particular positions.
The EEOC offers two ways employers to consistently meet JR-BN…
EEOC Suggests Two Ways to Meet
Job Related with Business Necessity (JR-BN)
1.
Validate the Criminal Conduct for the Position in Question per
Uniform Guidelines on Employee Selection Procedures.

2.
If data is available – “studies are rare at this drafting”
Use Targeted Screen, considering:

The Green Factors
- Nature and gravity of the offense
- Length of time since offense/release, completion of sentence
- Nature of job sought/held

Individual Assessments
- Notice to individual - may be screened out due to criminal record
- Opportunity to demonstrate why JR-BN exclusion should not apply
Targeted Screen – part 1
A Closer Look at the Green Factors
1.
The Nature and Gravity of the Offense or Conduct


2.
The Time Elapsed Since the Offense & Completion of Sentence


3.
The harm caused by the crime – to person, property, society, no one
Felonies are more severe than misdemeanors (in general)
“Employer policies typically specify duration of a criminal conduct exclusion.”
The EL court recognized that the amount of time passed since the criminal
conduct was probative of the risk he imposed in the position in question.
The Nature of the Job Held or Sought (potential risk)



The nature of the duties; personal interaction, especially with the public and
vulnerable populations
Level of access to and usage of confidential, financial, and proprietary
information, cash, property, and inventory.
Level of supervision, oversight, monitoring
“An employer may be able to justify a targeted screen exclusion solely
under Green factors.”
Target Screen part 2
“Individualized Assessment”
Steps Mirror the FCRA Adverse Action Steps
1. Employer Notification to Applicant – informs the individual that he may be excluded because
of past criminal conduct.
“If you believe there is additional information that may help us better understand and evaluate your
fitness for this position in light of the information in the attached consumer report, please contact us
immediately.”
2.
Opportunity for Applicant to respond
EEOC Guidance, like FCRA adverse action steps – silent on how long to wait before
exclusion is final
3.
Employer consideration of what the applicant says on his own behalf
- information is inaccurate, not pertain to individual
-
number of offenses for which individual was convicted
older age at the time of release from prison
evidence of same type of work post conviction
length and consistency of employment since conviction
rehabilitative efforts, training and education after conviction
employment and character references
whether the individual is bonded
Sample Background Check Policy
and Relevance Matrix
Available at www.essclientservices.com
- Downloadable Forms
- Let’s do a quick review
To Inquire, or Not to Inquire about
Criminal History
“As a best practice, and consistent with applicable laws, the
Commission recommends that employers not ask about
convictions on the job application and that, if and when they
make such inquires, the inquiries be limited to convictions for
which exclusions would be job related for the position in
question and consistent with a business necessity.”

Elizabeth Grossman, regional attorney for the New York District
Office of the EEOC, in discussing the new guidance said that the
question on the application -- “have you been convicted” –
even with non disqualifying language is going to be viewed by
the agency as a red flag.

The Commission cites the fact that some states require
employers to wait until late in the selection process to ask
about conviction. This trend has become known as, “Ban the
Box.”
The Aspirations of “Ban the Box”
Initiatives…
By requiring employers to not ask about applicant criminal histories
on the initial employment application, advocates hope –
•
Removes the deterrence of ex-offenders from even applying
•
Deters the employer from “sifting out” ex-offenders
•
Gives the ex-offender a chance to demonstrate qualifications, skills,
experience
•
When a record is disclosed/found, forces the employer to take a closer look
at job relevance, time elapsed, seriousness of offense, evidence of
rehabilitation, other mitigating factors

Advocates hope federal and state government “ban the box” policies will
become a model to private employers and cause them to see the
discrimination against ex-offenders as “invidious and unreasonable.”
“Ban the Box” States and Municipalities:
http://nelp.3cdn.net/14047d447967924539_zcm6bz5bp.pdf
Implications of Removing
the Criminal Question on the Initial
Application
What purpose is the question serving now?
How can we make up for this purpose?
SHOULD THE CRIMINAL QUESTION
BE ASKED AT ALL?
When should the question be asked and how
(delivery)?
•
Take advantage of on-line processes
What language should be used?
•
The Commission provides no examples
Add Individual Assessment to the
Criminal History Question?
Following the criminal history question, you
might consider adding:
•
Please list the type of offense and the date and location
of conviction(s).
•
If you believe that the information above does not
adequately reflect the circumstances surrounding the
casers), or if there is additional information not
submitted elsewhere that you believe the Company
should be aware of in evaluating your fitness for this
position, please provide that information below.
How Worried Should Employers
Be?
EEOC took a unilateral in publishing the 2012
Enforcement Guidance and as a result are
experiencing much push back.
On Thursday, May 10, 2012, the House of Representatives approved
247-163 a fiscal year 2013 funding bill (H.R. 5326) for a
variety of federal agencies, including the Equal Employment
Opportunity Commission (EEOC), that includes a series of
amendments that would curtail enforcement of certain laborand employment-related regulations and programs. These
amendments would prohibit the use of any of the bill’s funds
from being used by the EEOC or Department of Justice (DOJ)
to:
 implement, administer, or enforce the new EEOC
Enforcement Guidance: Consideration of Arrest
and Conviction Records in Employment Decisions
Another Webinar?
 Webinar: Understanding the EEOC’s New
Criminal Records Guidance: Education and
Enforcement Opportunities
 Wednesday, May 30, 2012
1:30 PM - 2:30 PM EDT
Presenters:
Maurice Emsellem, NELP Policy Co-Director
Sharon Dietrich, CLS Managing Attorney
Carol Miaskoff, EEOC Office of legal Counsel
Pamela Paulk, Johns Hopkins Health Systems VP of
Human Resources
https://www2.gotomeeting.com/register/739059170
Questions?
 If you have any questions or would like
to get in touch with me, please feel free
to contact me at:
 johnb@employscreen.com
 1-800-473-7778 x 101
*The webinar (including audio) will be available soon at
www.essclientservices.com