The New EEOC’s Enforcement Guidance – The good and the bad

The New EEOC’s Enforcement Guidance; The good and the bad

Today, April 25, 2012, the U.S. Equal Employment Opportunity Commission issued its Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964. The update has been years in the making and strives to mitigate the disparate impact that can occur to protected classes when screening practices are not properly devised.

As with most things, we take the good with the bad. This article is going to briefly discuss from a macro level, the good derived from the revision as well as some subtle negative impacts.

The Good—The “Enforcement Guidance” as it is properly entitled, differs from earlier policy statements from the EEOC in that it provides 1) specific examples, 2) explains how the EEOC analyzes, investigates, and determines to litigate infractions, and 3) provides best practices for employers to consider when making employment decisions involving criminal records.

It is important to note that the EEOC has not fundamentally changed any previous positions. The importance of this is that there is essentially nothing brand new outlined in the Enforcement Guidance. The new guidelines seem to persuade employers to develop and implement what is referred to as an “individualized assessment” of candidates.

Generally speaking, an employer must develop, document, implement, and train its employees to adhere to a policy which includes three main points.

1.   The Green Factors

  • The Nature and Gravity of the Offense or Conduct
  • The Time that has passed since the offense, conduct, and or completion of sentence
  • The Nature of the job held or sought

2.  Individualized assessment—Meaning the employer informs the individual of a possible exclusion based on past criminal conduct and provides an opportunity for that individual to     demonstrate the exclusion does not properly apply. Some factors to consider from the individual are;

  • Facts not included in the criminal report
  • Facts/circumstances surrounding the offense/conduct
  • Number of offenses in total
  • Evidence that the individual performed the same type of work, post conviction, with the same or different employer, with no known incidents of criminal conduct
  • Length and consistency of employment history before and after offense/conduct
  • Rehabilitation efforts like education/training
  • Employment/character references
  • If the individual is bonded under federal, state, or local programs

3.  Develop a policy of Criminal Conduct Exclusion that is Job Related and Consistent with Business Necessity

  • Develop a written policy
  • Include associated documentation/reports/statistics/articles
  • Define criminal report type including time frame
  • Define job type (s) for which criminal background (consumer report) was conducted
  • Training/guidance documents
  • Consider the job type. Outline the description of duties, relevant oversight, daily tasks, any federal/state/industrial requirements, and what human interaction is involved

To summarize the good, the EEOC has provided better clarification of guidelines including examples and suggestions for avoiding any discriminatory practices.

The bad is fairly succinct. There’s no room for ignorance and discriminatory practices will be litigated. One only need to look at the EEOC home web page to see numerous recent Title VII suits proudly displayed like hunting trophies mounted in a gamesmen’s room.

VICTIG will be hosting a webinar Tuesday, May 1st, 2012 to discuss the new guidance and answer any questions that you have. Register for this free webinar here.

Here are some links for you to look at.

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