Does Your Company Meet New EEOC Guidelines? : Odessa Law Practice Google+ odessa law practice  odessa law practice

Does Your Company Meet New EEOC Guidelines?

May 24, 2012By

How can your company meet the new EEOC guidelines?  Susan Prince – a Legal Editor for HR.BLR.com, explains the newly updated Enforcement Guidance on arrest and conviction records from the Equal Employment Opportunity Commission (EEOC). They address criminal background checks–specifically, the use of arrest and conviction records to make employment decisions.  Susan Prince explains the Guidance, along with 6 best practices outlined by the EEOC for employers who are considering criminal record information when making employment decisions.

The EEOC’s Updated Guidance:

1. Disparate Treatment (Intentional) Discrimination
2. Disparate Impact (Unintentional) Discrimination
3. The EEOC’s Best Practices Recommendations

What this means for your company:

>No blanket disqualificaton from every job for any conviction.

>Employer should screen for specific and job related criminal records within a defined period of time.
(1) If there would be possible harm from the offense. For example – if the theft caused property loss.
(2) Tasks performed to do the job and under what circumstance? For example, with or without direct supervision.
(3) The duration of exclusion sufficiently tailored based on the facts and circumstances.

>Individualized assessment – unless there is a “demonstrably tight nexus” beteen criminal conduct and the job in question.

The EEOC left an ambiguity between whether the employer MUST do an “Individualized assessment” or whether they do NOT have to do one. It’s best to err on the side of “Individualized Assessment”.

>You need to do a more balanced assessment. How does your Title VII risk compare to others? Be sure to go to EEOC guidelines to ensure that you reduce the risk from litigation in regards to Title VII. Figure out what are the different considerations. Are you screening rules nuanced enough that you can argue that they’ll meet this targeted screen?

There are intelligent ways to look at the potential employee’s information in a different sequence to wean out potential criminal background issues. Make sure that you have good written program materials. Have good record-keeping methods to prove that you don’t have an “across the board ban” on hiring all employees with criminal backgrounds.

Make sure that your program is fair and you balance compliance with Title VII and respect the rights of those who are protected against your other business interests.

Background check programs implicate a number of companies that restrict hiring because of credit. The is some vagueness is how the law is interpreted. Be sure to hire a reputable background check company that adheres to the new EEOC rules and guidelines for arrest and conviction records. Otherwise, you might leave your company open to a discrimination lawsuit.

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