3. Revise The Inquiries On Your Employment Application. The EEOC Guidance strongly discourages employers from asking about criminal convictions on job applications. However, most employers are still going to find it beneficial to inquire about criminal convictions. If an employer chooses to make inquiries about conviction records, it should include a very specific disclaimer along the lines of: “Answering ‘yes’ to any of the following questions does not constitute an automatic bar to employment. Among other things, we will consider the nature and gravity of the offense or conduct; the time that has passed since the offense or conduct and/or completion of the sentence; and the nature of the job you are seeking. If you answer ‘yes’ to any of the following questions, be sure to fill in the explanation field.”
4. Do Not Consider Arrest Records. Simply put, employers may not exclude an applicant based solely on an arrest record. An arrest, unlike a conviction, does not establish that the alleged conduct actually occurred. Moreover, the EEOC’s position is that African Americans and Hispanics are arrested at a rate that is two to three times their proportion to the general population. Thus, using arrest records would have a disparate impact on those two categories protected by Title VII.
5. Assess Each Person’s Individual Situation. The EEOC suggests in the Guidance that employers be required to conduct an “individualized assessment” before disqualifying any applicant based on criminal history. The EEOC suggests that employers consider individualized evidence including, but not limited to:
• the facts or circumstances surrounding the offense or conduct;
• the number of offenses for which the individual was convicted;
• age at the time of conviction or release from prison;
• evidence that the individual performed the same type of work, post-conviction, with the same or different employer, with no known incidents of criminal conduct;
• the length and consistency of employment history before and after the offense or conduct; rehabilitation efforts, e.g., education/training; employment or character references and any other information regarding fitness for the particular positions, and;
• whether the individual is bonded under federal, state or local bonding programs.
If an individual does not respond to the employer’s attempt to gather additional information about the background, the employer may make its employment decision without that information.