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How the New EEOC Guidance will Affect
President/CEO of LS Screening
• If you have questions
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please submit them using
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• Questions will be
answered at the end of the
•The first 9 slides are “Background”.
•It’s important to know how we got here because the
new Guidance builds on previous EEOC rules.
• The Fair Credit Reporting Act (FCRA) is the primary
“rule book” for background checks - enforced by the
• The Equal Employment Opportunity Commission
(EEOC) is involved only when background checks and
Title VII of The Civil Rights Act of 1964 intersect i.e.
discrimination against protected classes
(race, color, sex, religion or national origin).
• This involvement manifests itself primarily in the use of
“non-conviction data” aka “arrest records” in
background check reports (1990).
• The original1990 EEOC opinion is based on a 1987
DOJ report that stated minorities are arrested
“disproportionately” more often that majorities. Since a
person is presumed to be innocent, an arrest does not
constitute “guilt” and therefore unfair to minorities.
• This effectively bars the use and receipt of arrest
records in background checks even though the FCRA
says arrest records may be used unless the
information is older than seven years.
• Until this new Guidance, that was
It’s About “behavior”
• A “purist” will tell you that arrest records may be used if
the underlying behavior poses an unreasonable risk to
✴An applicant is arrested repeatedly for domestic
violence but never convicted; a review of the cases
reveals a pattern of violent behavior that poses an
unreasonable risk to the workplace.
✴The EEOC says you have to review the evidence
yourself. This is a very high standard for the
employer to meet.
The heart of the matter
• The EEOC enforces Title VII.
• A person with a criminal record is not a “protected
class” under Title VII.
• “Therefore, whether a covered employer’s reliance on
a criminal record to deny employment violates Title VII
depends on whether a claim of employment
discrimination is based on race, color, religion, sex or
• Final decision will be based on finding of “Disparate
Impact” and “Disparate Treatment”
Disparate impact & treatment
• Disparate Treatment occurs when a protected
applicant can demonstrate he/she was treated
“differently”by an employer
✴Example: Two applicants with similar backgrounds including
criminal histories aren’t given equal consideration because of
“racial or ethnic animosity”.
• Disparate Impact occurs when a protected applicant
can demonstrate that policies/practices have the effect
of disproportionately screening out protected groups.
✴Example: An employer historically reserves certain jobs or
positions in their organization for one protected class vs. another.
• After the plaintiff establishes disparate impact or
treatment, Title VII shifts the burden of production and
persuasion to the employer to “demonstrate that the
challenged practice is job related and consistent with
• Even if an employer successfully demonstrates that its
policies are job related, a plaintiff may prevail by
demonstrating that there is a less discriminatory
“alternative employment practice” that serves the
employer’s goals. (Brown v Fort Worth Bank & Trust -
✴Compliance with Federal laws that conflict with Title
VII are a defense to the charge of discrimination.
✴State and local laws/regulations are preempted by
Title VII if they require or permit an unlawful
The preceding rule have been in
place since 1990.
So What has changed?
• It used to be about arrest records. It now includes
• The new Guidance calls out a specific behavior it
believes contributes to discrimination under Title VII:
✴“Blanket” disqualification policies that exclude anyone
with a criminal record (any criminal record).
✴The use of general questions related to criminal
histories on applications i.e. “Have you ever been
• Again, “National data supports a finding that criminal
record exclusions have a disparate impact based on
race and national origin.”
• Two circumstances where EEOC believes their use
1. The employer validates the criminal conduct
exclusion using data that adheres to the “Uniform
Guidelines on Employee Selection Procedures”
(link on our website) - Note: This is extremely
2. The employer develops a targeted screen that
considers, at least, the nature of the crime, the time
elapsed and the nature of the job (“Green Rules”
from Green v Missouri Pacific Railroad).
✴Additionally, the employer then provides the
applicant an opportunity for an individualized
assessment (interview)... to determine if the
policy as applied is job related and consistent
with business necessity.”
What’s a company to do?
• From “EEOC Best Practices”
✴ Eliminate policies/practices that exclude people
based on any criminal record.
✴ Document that you’ve trained your managers about
What’s a company to do?
✴Develop a written policy/procedure for screening
applicants for criminal records. Include:
★ Essential job requirements of each position
★ Specific offenses that demonstrate “unfitness”
★ Duration of exclusions aka “point of redemption”.
What’s a company to do?
• Include an individual assessment or review of each
• Document any research or consultations used to craft
the new policy.
• When asking questions about criminal records, limit
inquiries to records that are job relevant.
how do i do this?
1. Make a list of all job classifications.
2. Determine what types/levels of crimes will disqualify
an applicant i.e. violence, theft sex, drugs, etc..
3. Determine what time limit(s) are relevant for each
type. Note: Some crimes can be “forever”.
4. Conduct assessments for marginal applicants.
5. Provide/document training for your hiring managers.
It might Look like this
Violence Drugs Theft Sex Driving
Office Yes Yes Yes Yes No
Field Yes Yes Yes Yes Yes
Yes Yes Yes Yes No
Manager Yes Yes Yes Yes Yes
Within Past 5 Years
Felonies Within Past 7 Years
Assault, Domestic Violence, Battery
Possession of a Deadly Weapon
Drugs 2 or more Possession of Mariijuana
Possession of Controlled Substance Sched
I, II, III
Possession with Intent to Distribute
Theft by Check $50-$500
Grand Theft Auto
Theft $500 - $50,000
Aggravated Sexual Assault
Registered Sex Offender (Previous)
Registered Sex Offender (Current) - (No
Driving 3 or more tickets
DWI - 1st or 2nd
DWI 3rd or More
How to implement
Felony conviction within past
seven years - Aggravated Assault
Conviction - Possession of
Marijuana six years ago.
Conduct Assessment; Review
and confirm Applicant’s version
DWI (1st) six years ago
If a driver, conduct assessment
and confirm facts; if non-driver,
not job relevant; should be hired
Consider adding consequences to 2nd DWI
to employment agreement
This isn’t one size fits all
• Each industry will have its “hot buttons”.
• Trade associations may create organized response for
• Consult your legal counsel
changing the question
Change the question to address convictions or pending
charges related to the job i.e. theft, violence, drugs, etc.
Remove the question from your application and present
it later in the process; prepare a brief questionnaire
with more detailed questions
1 Identify Your Positions By Levels
Determine Your Risk(s) by Job i.e Theft,
3 Identify Disqualifying Offenses with Time Limits
4 Put a Review Process in Place and Document
5 Eliminate all policy language that is “absolute”
Reformat the “Question” about criminal records;
the EEOC recommends moving it deeper into the
• There are currently 112 open cases regarding the use
of criminal records with the EEOC.
• Plaintiff Attorneys will “smell blood” in the water.
More information is available at
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