Given these statistics, it’s inevitable you’ll find a candidate with criminal history when conducting background screening. Some risk-averse employers may make the common mistake of immediately dismissing candidates with any criminal record. However, a blanket policy eliminating an applicant just for having any criminal history is illegal according to the Equal Employment Opportunity Commission (EEOC).
The EEOC enforces federal laws that makes it illegal to discriminate against a candidate or employee based on many factors, including race and ethnicity. Because there is a disproportionate amount of minorities with a criminal record, the EEOC recognized that background checks can have a disparate impact. In the Green v. Missouri Pacific Railroad decision, the court found “a complete bar on employment based on any criminal activity, other than a traffic violation, unlawful under Title VII.”
Because of this ruling, the EEOC cites the “Green Factors” in their Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions. The Green Factors require a company to demonstrate that “its policy or practice is job-related for the position in question and consistent with business necessity.” An employer must evaluate a candidate’s criminal history with the following principles:
To eliminate a candidate from consideration, the employer must show a clear connection why someone’s criminal record makes them unsuitable for the position they apply for. For example, a history of fraud is a valid reason not to hire a candidate for a financial position. However, denying this candidate because of speeding tickets may not be consistent with business necessity.
If a candidate passes the Green Factors, an individualized assessment must be conducted by the employer. As part of this, a candidate must have the opportunity to explain the results of the background check to the employer. When evaluating a candidate, the employer must show that Green factors were applied to the hiring process.
Solutions To Be Compliant When Making Hiring Decisions
There are three powerful ways employers can streamline this process:
With a 97% customer satisfaction rate and an in-house team of screening and compliance experts, Verified First is well positioned to help employers with their screening needs. For a free audit of your screening policies, please fill out the form below.