No pets in the office. No carrying over unused vacation days into the next fiscal year. No letting guests into the building without first having them sign in at reception.
These are all examples of clear-cut, blanket policies that may make sense in a lot of organizations. “No hiring someone with a criminal record” is not—and trying to apply such a policy can get companies in serious trouble.
In October 2018, for example, the U.S. Equal Employment Opportunity Commission (EEOC) announced it had come to a voluntary agreement with a retail firm that had been hit with racial discrimination allegations over a job candidate whose employment offer had been rescinded. A background check on the candidate revealed a criminal record, but the EEOC wanted the organization to ensure it followed guidance it first released in 2012, which stipulates that blanket exclusions based that kind of discovery are not permitted by law.
The retailer has since revised its hiring practices to include more specific questions on criminal history and provided mandatory training to essential employees on an annual basis. All of this could have been avoided through Individualized Assessment, a process that’s highlighted in our new eBook, The Beginner’s Guide To Background Checks.
If you’re unfamiliar with Individualized Assessment or haven’t applied it in your organization so far, this post will give you a better overview of what’s involved, and how to set yourself up for success.
Individualized Assessment at a Glance
Whereas denying a job candidate an employment offer, a promotion to an existing employee or similar scenario is governed by the Adverse Action process under the Fair Credit Reporting Act (FCRA), Individualized Assessment grew out of title VII of the Civil Rights Act of 1964. Fair hiring laws at all levels, including federal, state, and municipal, may require it.
Individualized Assessments happen in three basic phases:
1. The employer informs the individual that they may be excluded because of past criminal conduct.
2. The employer provides an opportunity to the individual to demonstrate that the exclusion does not properly apply to them.
3. The employer considers whether the individual's additional information shows that the policy, as applied, is not job related and consistent with business necessity.
Thinking Through Individualized Assessment
Individualized Assessments are important because, while no organization wants to introduce unnecessary risk through the people they hire, criminal background checks need to be examined on a case-by-case basis.
A better way to think about it might be what’s called the nature/time/nature test. In other words, what was the nature of the criminal offense? When did it happen? What’s the nature of the job for which they’re being considered—and how does that relate to the other two factors?
Let’s take a hypothetical example to show this in action. Imagine a growing consulting firm is searching for someone to take on a VP of strategy role that will help the organization stay focused and accomplish a variety of goals. One candidate’s resume might have many, or even most, of the experience and educational qualifications that match up to the job description. During an interview process, the candidate seems confident, personable, and responds well to questions about how they would approach the role.
When a criminal background check comes back with “consider,” however, alarm bells go off within the organization. The report shows the candidate had been convicted for possession and use of narcotics —the kind of behavior that obviously doesn’t align well with the expectations of a senior executive.
Before disqualifying the candidate in knee-jerk fashion, however, an Individualized Assessment would begin with an honest conversation based on a genuine desire to learn more. Imagine if the candidate not only admitted the information in the background check was true, but that there was much more to the story. He might explain, for example, that the arrest and conviction happened eight years ago, that he pursued treatment in a rehabilitation facility, that he has been regularly tested since then, and can offer references who are willing to arrest to his sobriety. The candidate might even choose to disclose more personal details about a challenging personal issue that contributed to his error in judgement.
What next? The nature of the offense is serious, but from a time perspective it’s far from recent. The nature of the job the candidate has applied for has major responsibilities and needs someone who can make smart decisions, even after they’ve made mistakes. That said, the candidate has never been in trouble with the law again.
The employer could still choose not to move forward with an employment offer, but the point here is to weigh the facts and the context surrounding them, document the process and if need be, move to an equally well-planned Adverse Action process.
Targeted Screening and Other Individualized Assessment Steps
Conducting an Individualized Assessment goes way beyond simply asking “What happened” to someone whose background check reveals an issue. The EEOC recommends an analysis of nine different factors. We’ve already gone over some of these, such as when the incident took place, efforts at rehabilitation and character references. Here are some others that you could build into an Individualized Assessment process so that you’re not trying to figure this out as you go along during a hire:
How serious was the offense? Criminal records can show everything from misdemeanors to felonies, as well as incidents that led to a particular plea and whether or not there was a conviction.
Where and what have they worked on since then? A hiring decision for someone with a criminal history might look very different if, following an incident, they were employed elsewhere doing similar or comparable duties.
Was this an isolated or recurring issue? Was this someone who made a mistake once and paid for it, or were there repeat offenses that need to be taken into account?
What gaps, if any, are in the employment history? Think about how you would treat a candidate who has a criminal history that was preceded by a flawless track record of many years at other firms prior to an incident, as well as someone who continued to work while pursuing rehabilitation immediately afterwards.
Was the record dismissed? Even old records can resurface as part of the background check in many states.
Is this person bonded? Ask about their participation in local, state, or even federal programs.
Finally, remember that Individualized Assessment is but one component of a more comprehensive, consultative and ultimately more humane way to address what may be discovered during a background check.
For much more, including how Individualized Assessment and Adverse Action work together, download The Beginner’s Guide To Background Checks.