Workplace talent is a priceless asset for any business, large or small. At times, the desire to snatch the best candidates further fuels the fire for employers in a competitive job market.

In other instances, safety may be an issue for a company. If a job seeker has a criminal record, even though the crime was expunged, old or irrelevant, it most likely will serve as a red flag for HR and employers to think twice before hiring the applicant. Even though it is tempting to quickly brush these candidates off the top of the pile for consideration, you may be violating EEOC guidelines if it appears you demonstrate discriminatory hiring practices, whether unintentional or not.

Last April, the EEOC updated their stance on hiring practices for screening job candidates and new hires. Criminal background checks should not determine the applicant’s candidacy for the position since it limits employment opportunities and the arrest does not necessarily validate that the person committed the offense. Private employers with at least 15 employees who work for the business 20 weeks or more a year are subject to EEOC guidelines under federal law of the Title VII of the Civil Rights Act of 1964.

Recently the NAACP and a Minnesota public action community organization TakeAction accused Target Corp. of discriminatory hiring practices in 10 formal complaints filed with the EEOC. Fully qualified applicants were rejected because of past criminal records. Since Target is Minnesota’s fourth largest employer, TakeAction recognizes the large corporation with a responsibility to close the inequality gap.

In one specific example, an applicant applied for a job at Target with an expunged misdemeanor on her criminal record. She was offered a job as a cashier, yet received a call from Target two days before her start date that she could not start her orientation because of her criminal background.

The Minnesota public action group hopes Target will change hiring practices in order to fairly assess applicant’s qualifications and avoid judgment based on skin color or background. Target responded and denied any unfair activity on their part as well as adding the corporation previously met with TakeAction to discuss hiring practices.

Target spokeswoman Molly Snyder additionally released an official statement, “The existence of a criminal record does not disqualify a candidate for employment at Target, unless it indicates an unreasonable risk to the safety and welfare of our guests, our team members or our property.”

According to survey of Society of Human Resources Management members, 87 percent of businesses conduct a criminal background test on at least some applicants. This leaves one essential question left unanswered. How can your business comply with EEOC hiring guidelines while screening applicants?

Think Green

If you think of one economical color during your hiring routine, the guidelines may stay fresher in your mind. Think of the ‘Green’ factors, which references Green v. Missouri Pacific Railroad, 523 F.2d 1290, 11 FEP Cases 658 (8th Cir. 1975). The case resulted in the finding that an employer must consider the nature and severity of the criminal conviction, time elapsed since the criminal offense, and nature of the job in order to support grounds of denying a job applicant because of their criminal background.

This is why the TakeAction team in Minnesota is requesting Target to consider the ‘Green’ factors during the hiring process. This is also the easiest step to take for small and large businesses alike to ensure their hiring practices comply with EEOC’s hiring guidelines.

Think in Context of the Job

Is the applicant’s violation relevant to the particular job opening? If the applicant’s background check reveals a criminal offense, the applicant must still be considered under federal law. If the offense disqualifies him for the job, then the applicant may be removed from consideration. It may be applicable to remove the application from the pool if applicant’s offense involved minors and the position requires frequent interaction with children. Take note it is considered race discrimination if an employer selects a criminal-free applicant over an applicant with a criminal background unless additional investigation concludes the decision.

Consider the Type and Severity of the Offense

It is unlawful for businesses to discriminate against job applicants with a criminal background. To alleviate the pressure of hiring applicants with a criminal background, employers should consider the offense at hand. Driving violations resulting in a misdemeanor charge may be easily admissible for a job position which does not require driving in the job description or the work commute. The applicant’s defense may be that the violation was a mistake, an accident of self-defense. The arrest or violation does not always signal that the applicant committed the crime. The employer should allow the applicant the forum to explain the situation and the employer should listen with an open mind.

Length of Time since the Offense Occurred

An easy indicator to determine if the applicant’s job candidacy is valid is the length of time since the offense. If the offense or conviction occurred ten years ago, the offense may be admissible if the applicant has re-prioritized career goals and ambitions.

The EEOC provides base guidelines on a national level for employers to follow.  However, some states offer tighter restrictions in the hiring process, such as prohibiting employers from researching criminal records or considering arrests that occurred over 5 or 10 years ago in the application process.

Staying in compliance with EEOC guidelines will save your bottom line and prevent unnecessary legal fees from disgruntled applicants and activist groups.

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