EEOC requirements mandate that employers keep records that will disclose the impact its employee selection procedures have on equal employment opportunities. Crothall Services Group, Inc., a nationwide provider of janitorial and facilities management services based in Wayne, Pa., was allegedly in violation of federal law requiring it to maintain appropriate records.
According to EEOC’s complaint, Crothall conducts criminal background checks and criminal history assessments. Crothall uses its assessments of an applicant’s criminal history to make hiring decisions. The company, allegedly, fails to make and keep required records, however, that will disclose the impact that its criminal history assessments have on persons identifiable by race, sex or ethnic group. This violates Title VII of the Civil Rights Act of 1964.
So what didn’t the employer do right? In an April 7 2016, the EEOC Office of Legal Counsel staff members wrote a letter in response to a request for public comment
from a federal agency or department. This letter is an informal discussion of the noted issue and does not constitute an official opinion of the Commission.
THE EASIER WAY However, it does present an efficient method of complying with EEOC requirements.
- The employer must show that its policy operates to effectively link specific criminal conduct, and its dangers, with the risks inherent in the duties of a particular position.
- An employer will consistently meet the “job related and consistent with business necessity” defense in one of two circumstances:
o First, the employer may demonstrate that it validated the criminal conduct screen for the position at issue, per the UGESP standards (if data about criminal conduct as related to subsequent work performance is available and such validation is possible); or
o Second, the employer develops a targeted criminal record screen that is narrowly tailored to identify criminal conduct with a demonstrably tight nexus to the position in question by taking into account, at least, the following factors:
(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; and
(3) The nature of the specific job held or sought.
- The employer should then provide an opportunity for an individualized assessment for people excluded by the screen to determine whether the policy as applied is job related and consistent with business necessity. The individualized assessment would consist of notice to the individual that he has been screened out because of a criminal conviction; an opportunity for the individual to demonstrate that the exclusion should not be applied due to his particular circumstances; and consideration by the employer as to whether the additional information provided by the individual warrants an exception to the exclusion and shows that the policy as applied is not job related and consistent with business necessity.
THE HARDER WAY The alternative method is a cumbersome and quite time consuming that is outlined in the Uniform Guidelines on Employee Selection Procedures 29CFR Part 1607 A brief outline of this cumbersome procedure is:
Each user should maintain and have available for inspection records or other information which will disclose the impact which its tests and other selection procedures have upon employment opportunities of persons by identifiable race, sex, or ethnic group as set forth in paragraph B of this section, in order to determine compliance with these guidelines.
- The records called for by this section are to be maintained by sex, and the following races and ethnic groups.
- If the information shows that the total selection process for a job has an adverse impact, the individual components of the selection process should be evaluated for adverse impact.
- Adverse impact and the “four-fifths rule.” A selection rate for any race, sex, or ethnic group which is less than four-fifths ( 4/5) (or eighty percent) of the rate for the group with the highest rate will generally be regarded by the Federal enforcement agencies as evidence of adverse impact, while a greater than four-fifths rate will generally not be regarded by Federal enforcement agencies as evidence of adverse impact.
- Then this regulation lists rules and definitions of the various options i.e. Criterion, Content and Validity.
