Individualized Assessments for Criminal Background Checks

by Snell & Wilmer

What if the Equal Employment Opportunity Commission (EEOC) forced your company to defend a Title VII lawsuit based on a company-wide policy to not hire felons? Peoplemark, Inc. is dealing with this exact scenario in the Sixth Circuit case EEOC v. Peoplemark, Inc., as are other businesses throughout the nation. Complicating matters further, on April 25, 2012, the EEOC issued revised guidelines relating to the use of an individual’s criminal record in hiring decisions. See “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, U.S. Equal Employment Opportunity Commission” (2012) (hereinafter “Guidelines”). In May 2012, Snell & Wilmer published a Workplace Word article explaining the impact of the Guidelines on conducting criminal background checks as regulated under the Fair Credit Reporting Act. In addition to issues associated with conducting criminal background checks, the Guidelines dictate how an employer can use the information in hiring decisions once a criminal background check has been completed.

An employer may be found liable for violating Title VII when the plaintiff demonstrates that the employer’s policy for refusing to hire based on criminal background checks has the effect of screening out a Title VII-protected group and the employer fails to demonstrate that the policy is job related and consistent with business necessity. See 42 U.S.C. § 2000e-2(k)(1)(A)(i). The EEOC emphasizes that criminal records may be inaccurate and a disproportionate number of Title VII-protected groups have criminal records. Therefore, the Guidelines strongly recommend an individualized assessment for every prospective employee before an employer refuses to hire an individual based on a criminal background check, regardless of whether the applicant was convicted or not.

In terms of arrests, the EEOC emphasizes that arrests do not necessarily equate to criminal conduct. However, the conduct associated with the arrest may trigger an exclusionary policy. Therefore, the employer must give the applicant an opportunity to explain the events and circumstances leading up to the arrest. Regarding convictions, the EEOC acknowledges that convictions are usually sufficient evidence of guilt. But the EEOC also requires individualized assessments in the case of convictions because “there may be evidence of an error in the record, an outdated record, or another reason for not relying on the evidence of a conviction.” See Guidelines, § V.B.3. Therefore, individualized assessments are necessary for both arrests and convictions.[1]

The purpose of the individualized assessments is to demonstrate that the policy of not hiring an applicant with a particular conviction or arrest is related to the job in question and consistent with business necessity. To accomplish this, the EEOC recommends that an employer develop a consistent and targeted screen utilizing the factors identified in the 1975 Eighth Circuit decision, Green v. Missouri Pacific Railroad, 523 F.2d 1290 (8th Cir. 1975). Those factors are:

  • The nature and gravity of the offense or conduct;
  • The time that has passed since the offense, conduct and/or completion of the sentence; and
  • The nature of the job held or sought.

Once the targeted screen is developed, the employer should schedule an assessment of the individual including: (1) notice to the applicant that he is being screened because of criminal conduct, (2) an opportunity for the applicant to explain the circumstances of the criminal conduct, and (3) a thoughtful analysis by the employer explaining the reasons why the applicant is still excluded from employment based on the information provided. If the applicant refuses to submit to the individualized assessment or does not respond after being given notice, the employer may make its employment decision without the individual’s explanation. The EEOC admits that a narrow screen based on the Green factors may be enough in some cases, but still recommends an individualized assessment to avoid Title VII liability. The EEOC also acknowledges that compliance with federal laws and regulations is a defense to Title VII liability but compliance with state laws and regulations may not be. See Cal. Fed. Sav. & Loan Ass’n v. Guerra, 479 U.S. 272, 282-84 (1987) (holding Title VII preempts state law inconsistent with it).

Regarding the first Green factor, the nature and gravity of the offense or conduct, the EEOC recommends that an employer look to the harm caused by the criminal activity, the legal elements of the crime and whether the crime is a misdemeanor or a felony. The second Green factor is not as clear cut. The EEOC suggests that an employer look to recidivism studies to determine if the criminal conduct is still relevant to the position in question. Although not expressly mentioned in the Guidelines, employers may also look to employment history. If the applicant has been unable to successfully hold down a job after the criminal conduct in question, further investigation may show that the applicant continues to relapse into criminal behavior. Finally, to relate it all back to the third Green factor, the nature of the job held or sought, the EEOC looks to the job’s duties, the job’s essential functions, the circumstances under which the job is performed (e.g., supervision, oversight, and interaction with co-workers or vulnerable individuals) and the environment in which the job’s duties are performed (e.g., outside, in a warehouse or in a private home).

Even after the individualized assessment, a Title VII plaintiff may still prevail if there is an equally effective policy that is less discriminatory and serves the employer’s legitimate goals. Therefore, the exclusionary policy developed must be narrow to minimize potential discrimination. As a best practice, the EEOC recommends that employers limit their requests for information to criminal conduct that would be related to the position and is consistent with business necessity.

Based on the Guidelines, it is no longer advisable to refuse to hire individuals solely based on their criminal record discovered during a background check. Therefore, employers should consider the following:

  • Developing a narrow exclusionary policy for criminal conduct based on each position and business necessity;
  • Revising job applications to only request information on criminal conduct related to the narrow exclusionary policy discussed above; and
  • Conducting an individualized assessment of each applicant before excluding the applicant for criminal conduct.

Ultimately, the Guidelines will govern how the EEOC processes complaints from individuals refused employment because of criminal conduct and, therefore, attention must be paid to them. Counsel may be helpful to employers in determining whether their exclusionary policies for criminal conduct comply with the Guidelines set forth by the EEOC.

[1] The EEOC acknowledges that an employer can validate the criminal conduct screening process pursuant to the Uniform Guidelines on Employee Selection Procedures (UGESP), codified at 29 C.F.R. Part 1607. However, the EEOC emphasizes that social science studies relating to criminal conduct and subsequent work performance in a particular position must be available to utilize UGESP and such studies are rare.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Snell & Wilmer | Attorney Advertising

Written by:

Snell & Wilmer

Snell & Wilmer on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.