EEOC guidelines that impact employment background checks
In 1975 an Eighth Circuit Court Case, Green v. Missouri Pacific Railroad, resulted in a finding by the court that it was discriminatory under Title VII for an employer to generally “follow a policy of disqualifying applicants with a conviction, other than minor traffic offenses.” The Court cited three factors known as “The Green Factors” that should be considered before deciding to disqualify an applicant based solely on the existence of a criminal conviction. The court further clarified that these factors should be related to the position in question and be consistent with a business necessity.
The Green factors are:
1. The nature and gravity of the offense or conduct
2. The time that has passed since the offense or conduct and/or completion of the sentence
3. The nature of the job held or sought
What this generally means for employers is that having a blanket policy to disqualify an applicant for any conviction other than minor traffic could create a potential Title VII violation. As a reminder, Title VII refers to the Civil Rights Act of 1964. Many components of this act give specific guidance on discrimination practices with respect to hiring practices by employers.
A key component Title VII is the concept of disparate impact. A blanket policy of denying anyone employment based solely on the existence of an arrest or conviction which may disproportionately impact those protected under Title VII. A blanket policy may also violate the law if not job related and consistent with business necessity, also known as disparate impact liability.
There is a significant amount of data that supports findings that criminal record exclusions do have a disparate impact on populations based on race and national origin. Other areas that employers may get in trouble is considering arrest records as a reason to exclude applicants from consideration. The fact of an arrest does not establish that criminal conduct has occurred. Therefore, exclusions based on an arrest, if it is not job related, is not in and of itself consistent with a business necessity. However, an employer can decide, based on the conduct underlying the arrest, if the conduct is relevant and would indicate that the applicant is unfit for the position in question. For instance, an applicant with an arrest for a sexual assault would most likely not be a good fit for a daycare worker.
The EEOC guidance states that employers can meet the job related and consistent with business necessity recommendation as follows:
1. The employer validates the criminal conduct exclusion for the position in question considering the uniform guidelines on employee selection procedures.
2. The employer develops a targeted screen considering at least the nature of the crime, the time elapsed, and the nature of the job: the three factors identified by the court in Green V. Missouri Pacific railroad, 549 F2d 1158 (8th Cir. 1977).
The employer’s policy then, should provide an opportunity for an individualized assessment for those people identified by the screen. The assessment should be used to determine if the policy applied is job related and consistent with the business necessity. There is interpretation of Title VII that does not require individualized assessment in all circumstances. The use of screen that does not include individualized assessments, however, is more likely to violate Title VII.
It should be noted that compliance with other state and federal laws and or regulations such as the FCRA that conflict with title VII is a defense to a charge of discrimination under Title VII, according to the EEOC. Considering the information we have provided regarding the FCRA in other articles, it’s recommended that your HR department or legal department reflect on the importance of the green factors when crafting your hiring policy.
The US Equal Employment Opportunity Commission has some specific guidance on their website. https://www.eeoc.gov/laws/guidance/enforcement-guidance-consideration-arrest-and-conviction-records-employment-decisions#VB6