In the past year, both EEOC and OFCCP have given notice that they will be carefully watching employers’ policies on hiring criminal offenders. In April of 2012, EEOC issued, EEOC Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions. On January 29, 2013, OFCCP published Directive 306 in which it stated that it will follow the EEOC Enforcement Guidance. What do these two events mean for employers?

It is certainly not illegal to consider an applicant’s criminal history when making employment decisions, in fact, there are many positions (e.g., law enforcement) for which an employer must conduct criminal background checks on applicants. What has changed, at least in the minds of EEOC and OFCCP, is the effort an employer must make to demonstrate that consideration of past criminal behavior is job related.

Employers have two options in justifying the consideration of criminal convictions. The first is to conduct a validation study similar to that used in establishing the job relatedness of other employment tests such as cognitive ability tests, physical agility tests, or personality inventories. The second option is for an employer to conduct an “individualized assessment” for each applicant in which the employer considers the relatedness of the crime to the job being applied for as well as the amount of time that has passed since the former offender has either committed the crime or been released from jail/prison. The employer must then provide the former offender with the opportunity to convince the employer that he/she she is no more of a risk than a non-offender.

At a minimum, employers should:

  • Rescind any policy that states it will never hire a person with a criminal conviction
  • Avoid any statements in job advertisements regarding criminal convictions
  • Indicate on the application that a conviction will not automatically bar an applicant from being hired
  • Only consider criminal convictions in the last stages of the hiring decision rather than as an initial screen
  • Train managers about Title VII

by Mike Aamodt and Dave Sharrer, DCI Consulting Group

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