August 11, 2015
When the employer receives negative information, the employer is put in the position of having to make a “negative adjudication” (or no hire decision) based on the information obtained. Consistency in the negative adjudication process is a critical litmus test of whether there is discrimination in the workplace. The greater the consistency, the less likely discrimination is present. Conversely, while consistency remains important in the hiring decision process, the EEOC’s new guidelines caution against rigidity and broad-based rules for screening candidates.
For example, a hiring decision matrix that screens out a front desk clerk candidate because of a DUI could be challenged for a lack of connection between the screening criteria and appropriate suitability factors for this particular job position.
To minimize or avoid liability, Employers should:
- Develop a comprehensive matrix of consistent negative adjudication standards for each position, which places a greater emphasis on criminal (or credit) history that makes a candidate unsuitable for a particular position. Factors to consider include: (a) the nature of the job sought; (b) the number, nature and gravity of offense(s); (c) the passage of time since the offense and/or completion of the sentence, and any evidence of rehabilitation efforts; and (d) other evidence of suitability;
- Suspend any blanket hiring policy that has rigid disqualification requirements related to criminal or credit history;
- Build a screening and hiring policy using job-relatedness and suitability assessments, and develop a written policy to help guide those who have involvement in hiring. Build in best practices addressing how to ask for information about these issues, how to assess them, and how to properly differentiate unique and individualized factors;
- Train, train, train. A policy is great, but compliance requires understanding the reason for the change, clarity about what is now different, and buy-in for new practices. Training is the best tool to move an organization forward and reduce the risk of misunderstanding or intentional non-compliance with the new policy.
- Implement the policy consistently. When determining whether to grant a waiver to a particular applicant based on information that explains the circumstances, maintain a record of the decision. When a subsequent applicant provides similar information, refer to any prior waiver request(s) to ensure similar treatment of all applicants.
Conclusion
The EEOC’s focus on potential discriminatory impact of neutral preemployment policies and practices requires employers to think about these issues in a new way and to assess policies and practices that may be longstanding or withstood prior challenge. Employers in many industries have found themselves the target of some of the EEOC’s systemic investigations of criminal background check policies. The good news is, there are steps an employer can take to minimize or avoid liability.