Line Up a Screening Strategy

​Target Corporation has announced plans to stop asking potential employees about their criminal histories on job applications at all of its stores next month. The discount retailer, which operates 1,778 stores in the United States and employs 361,000 people, stopped asking applicants about past crimes in its home state of Minnesota in October last year. This move seems drastic, but it is the culmination of both regulatory and social pressure that has been building for years.

Those who advocate for ex-offenders have long pushed “ban the box” initiatives, claiming that employers reject those who have admitted to a criminal past before those applicants have a chance to explain their circumstances. Over the past two years, the federal government has also intervened: the Equal Employment Opportunity Commission (EEOC) now strongly urges companies to make decisions based on the qualifications of individual applicants rather than immediately disregarding those with a criminal background.

This shifting landscape can leave employers in a difficult position. Failure to properly screen out potentially dangerous applicants can lead to a negligent security lawsuit, or even a workplace violence incident. And now, failure to comply with the EEOC guidelines can lead to a lawsuit filed by the agency. Following is an update on the latest from the EEOC as well as discussions of relevant lawsuits that can provide employers with some guidance on how to proceed.

SCREENING

Changes made to the EEOC’s guidelines on hiring practices, which took effect in April 2012, have raised numerous questions about their effect on discrimination laws. U.S. law prohibits employers from treating job applicants with the same criminal records differently on the basis of race, color, religion, sex, or national origin. The new guidance issued by the EEOC served to update and clarify the agency’s policy concerning the use of arrest and conviction records in employment as they relate to discrimination.

The guidance consolidates and supersedes previous policy statements on the issues. However, it is important to note that the EEOC has not changed its fundamental position and has long held that a blanket “we don’t hire convicted criminals” policy is ill-advised. Even a limited “do not hire” policy regarding convicted felons has been a red flag with the EEOC in many cases. Moreover, the EEOC has consistently examined the impact of an employer’s seemingly neutral policy to determine whether it disproportionately screens out protected individuals. The EEOC has also reliably looked at the issue through the lens of discrimination—for example, watching for an employer who hires Caucasian applicants with criminal records but does not hire black, Hispanic, or Asian candidates with similar records.

What is new under the recent enforcement guidelines is the EEOC’s explanation as to how employers may meet the “job-related and consistent with business necessity” standard. This standard allows companies to screen out those with a criminal record if the screening is important for a specific job and necessary for a business reason. The major change requires the employer to develop a screening policy that considers the nature of the crime, the time elapsed since the crime was perpetrated, and the nature of the job. The employer’s policy then provides an opportunity for an individualized assessment to determine whether the policy as applied is job-related and consistent with business necessity.

Individualized assessments are being encouraged by the EEOC to allow job applicants the opportunity to provide additional information to a prospective employer prior to the hiring decision. Information that might be considered includes rehabilitation efforts taken, such as continued education, training, or specific industry certifications; length and consistency of employment history both before and after the offense; and evidence of having performed work similar to the available position before and following the offense. Also under consideration would be the age of the applicant at the time of the offense; specific facts or circumstances surrounding the offense or conduct; number of convictions; employment or character references; and evidence as to whether the applicant is bonded under a federal, state, or local program.

A letter issued by the EEOC in August further clarified that, while individual assessments are optimal, employers can use a two-step process for screening employees. Employers may initially use a targeted screening process that excludes applicants based on “at least the nature of the crime, the time elapsed, and the nature of the job.” Then, the EEOC noted, the employer can individually assess those applicants that were screened out. This process would, according to the agency, allow employers to ensure that they were not “mistakenly screening out qualified applicants or employees based on incorrect, incomplete, or irrelevant information.” Conducting screening in this manner would also allow applicants to correct errors in their records.

A federal law barring a convicted felon from being hired for a specific position is the only exception carved out by EEOC guidelines. This, of course, leaves employers licensed by a state agency that imposes a similar restriction in a tough predicament. Employers either risk the ire of the EEOC or take a chance on being in violation of state law and potentially having their credentials revoked. Contract security officer firms perfectly illustrate this scenario. A condition of their license to operate often requires that they screen out convicted felons; however, the EEOC could argue that such justification is insufficient and that there may be some officer positions suitable for an individual who was convicted many years ago.

Other salient best practices include identifying essential job requirements and the circumstances under which they are performed, such as unsupervised access to children. It is also imperative to determine specific offenses that may demonstrate unfitness for particular positions. Under the EEOC enforcement guidelines, when making an employment decision, the employer is allowed to consider whether conduct in question suggests unfitness for a particular position. As an example, an applicant who has a history of embezzlement would not be a candidate for a position of financial authority.

Employers should also establish a time period for exclusions for criminal conduct based on all available evidence. Moreover, if an employer aims to ask applicants about criminal records, it should be done on or after the first interview with inquiries limited to job-relatedness and business necessity.

While due diligence is imperative on the part of employers, they don’t have to go it alone. Software programs exist that help to determine job-relatedness when comparing the past crime for which the applicant was convicted to the risks inherent in the job applied for. The software asks specific questions about each job description such as: Will the applicant work with minors, the elderly, or other potentially vulnerable individuals? Is the job considered to be a position of public trust? Next, the software asks about criminal charges. Was there an arrest only, or did the charge result in a conviction? How long ago did the charge occur, and have there been repeat or multiple offenses?

A calculation is then made based on the data input, providing an initial assessment as to how likely the charges are to be considered job-related and consistent with business necessity. The employer is then able to record his or her own thoughts as well as any information gleaned from conducting an individualized assessment with the applicant. Special circumstances as well as a final hiring decision can then be entered. All this recorded data is available to help provide consistency in all hiring decisions and to defend against a possible lawsuit.

Background screening companies can conduct individualized assessments and provide a written report, thereby assisting the employer in difficult hiring decisions. Employers who decide to tackle this task on their own should be aware that nothing in the EEOC guidelines requires a face-to-face interview.

In an effort to save time, applicants found to have a criminal record could be provided a standard form that asks the same questions that would be posed during an interview. Even if applicants failed to return the questionnaire, the employer would be able to show that a viable procedure was in place and that the company was willing to listen.

DISPARATE IMPACT

An understanding of the definitions of disparate treatment and disparate impact is of paramount importance. The former refers to intentional discrimination, while the latter denotes unintentional discrimination. Disparate impact occurs when a policy does not have the appearance of being discriminatory, but ultimately has an adverse impact on certain groups. In this case, should a discrimination claim occur, an employer would have to prove that its background-screening policy is justified based on business necessity and job-relatedness and that there is no alternative.

Though disparate impact is a focus of EEOC enforcement, the agency has recently had some trouble proving disparate impact in court. For example, in EEOC v. Freeman (U.S. District Court for the District of Maryland, 2013), a company specializing in convention and meeting management implemented a background-screening program. The company, which employed more than 3,500 full-time employees and 25,000 seasonal workers, had faced issues of embezzlement, theft, drug use, and workplace violence. To try to thwart these behaviors, the company designed a background-screening program.

The screening varied depending on the type of job being sought by the applicant. For example, only those who dealt with money received a credit history check. Executives and supervisors underwent comprehensive screening not required of seasonal workers. Those employees who did have past convictions were given the opportunity to explain or refute those charges. The only situations meriting automatic disqualification were failing to disclose a conviction, seriously misrepresenting the circumstances of a criminal offense, or making a materially dishonest statement.

The EEOC did not challenge any of the specifics of the screening program. Instead, the agency claimed that conducting background checks and credit history screening had a disparate impact on protected classes, such as African Americans. The EEOC argued that, because of a higher rate of incarceration, African Americans would be excluded at a higher rate by such background screening.

The court disagreed. It found that background screening by employers is a necessary part of doing business. The court wrote that “careful and appropriate use of criminal history information in an important, and in many cases essential, part of the employment process.”

The court also noted that proof of disparate impact “requires reliable and accurate statistical analysis performed by a qualified expert.” This analysis was not provided by the EEOC in this case, ruled the court.

In another case, the EEOC launched an aggressive investigation on a disparate impact case that turned out to be unfounded. The company filed suit against the EEOC and was awarded $752,000 in damages. The case, EEOC v. Peoplemark, Inc. (U.S. Court of Appeals for the Sixth Circuit, 2013), involved a temp agency that refused to hire an applicant. The applicant notified the EEOC, claiming that the company failed to hire her based on the fact that she had a felony conviction.

The EEOC's own investigation showed that the company frequently hired ex-offenders, according to the court, but the agency pursued the case anyway. The company’s policy of individual assessment meant that those with felony convictions were hired at a rate greater than market averages.

As these cases illustrate, companies should be prepared for questions about their background screening programs by understanding the EEOC’s guidelines. Companies should craft a screening program based on the company’s safety and security needs and then ensure that the program is implemented fairly. 

David C. Sawyer, CPP, is president of Safer Places, Inc., a full-service firm based in Middleboro, Massachusetts, specializing in preemployment screening, security consulting, and tenant screening.