EEOC Enforcement Guidance

If you have attended any HR refresher course or seminar in the last year you have most likely heard about the EEOC’s Enforcement Guidance. This guidance was issued April 25, 2012 and has been the burning topic in both the HR and Consumer Reporting Agency (CRA) communities in the last year. The guidance was issued to help employers tailor a policy and practices that the U.S. Equal Employment Opportunity Commission determine are fair to individuals with prior arrests or convictions.

The truth is this guidance is more of an expectation, not strictly advisement. This means you should be revising your HR polices to meet these expectations. Several lawsuits have already been brought to court solely on this guidance, and they will continue to do so.

In case you happen to be that employer who has yet to understand what is going on, let me enlighten you. This guidance does several things:

• Informs employers that the EEOC will no longer tolerate “blanket policies”. Examples: “We do not hire felons.” “Criminal conviction, don’t apply!”
• Reminds employers that “an arrest does not establish that criminal conduct has occurred, and an exclusion based on an arrest, in itself, is not just related and consistent with business necessity.”
• Recommends individualized assessment of each applicant with a criminal conviction, if used for an employment decision. Things to ask:
  1. If you use a conviction against an applicant, is it job related and consistent with business necessity?
  2. Did you evaluate the time that has lapsed since the offense?
  3. Severity of the convicted offense?
  4. What is the relation, of the conviction, to the applied position?
• Includes an employer’s best practices reference to help evaluate your HR policies.

If you have not done so already make sure you have a copy of the guidance. You, your team, and legal counsel need to not only read it, but fully understand it. Make sure to revaluate your practices and policies and apply the recommendations.

Reference: EEOC Enforcement Guidance, 04/25/2012, U.S. Equal Employment Opportunity Commission, Office of Legal Counsel

Written by J. Chullen