Employment Counseling and Litigation

Individualized Hiring Assessments and the EEOC

In a well-publicized enforcement agreement, the U.S. Equal Employment Opportunity Commission has reaffirmed its belief in the importance of following its enforcement guidance on the use of applicant criminal background checks.  The EEOC announced a substantial settlement agreement with a large retailer resolving allegations of race discrimination.  According to the allegations, applicants had job applications denied based on the company’s background check policy that rejected any applicant with a criminal history.

Under the agreement, the employer removed blanket exclusions for criminal convictions. Instead, the employer’s revised policy will allow applicants with criminal convictions to participate in post-application individualized assessments.  The employer also agreed to postpone criminal history inquiries until later in the hiring process.  (I note that, in some instances, this can be a good way to avoid hiring discrimination claims.)  The EEOC contends this helps ensure that applicants are chosen based on qualification rather than just criminal history.

This agreement reinforces the importance of employer consideration of the EEOC’s guidance on the subject — at least in some cases. Indeed, individualized assessments in many cases are a good idea for two simple reasons.  First, in some cases, a minor infraction by a young person many years ago may have little bearing on his or her behavior and abilities years later.  Second, compliance reduces the likelihood of costly charges and possible lawsuits later.

Note, however, the EEOC’s guidance advises employers to use targeted screens to ensure that only criminal convictions “related to the job” are considered.  That may work in some cases, but not in all.  The guidance also recommends that employers conduct assessments based on nine different criminal history factors before making final employment decisions.  Again, that may be necessary in some cases and not in others.

In any event, this enforcement action is a good reminder that some form of individualized assessment may be a good idea.

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