In 2012, the Equal Employment Opportunity Commission (EEOC) published new enforcement guidance based on its interpretation of Title VII of the Civil Rights Act, positing that if an employer chose to use criminal history as a screening requirement, it could result in exclusion of a particular protected class, which could be constituted as discrimination.

As part of the guidance, the Commission published a never-before-seen recommendation that employers conduct an Individualized Assessment – or case-by-case review – so candidates with higher incarceration rates were not automatically excluded from the applicant pool by a blanket staffing decision. The Individualized Assessment process recommends that employers determine whether a criminal record is specifically related to the position being applied for, and allows a candidate to provide evidence that a conviction is not related to his or her ability to perform a job.

It is important to note that the EEOC’s guidance is not a statute or regulation; therefore it does not have the full force and effect that a law would. As a result, there were inconsistencies in the degree to which different employers were choosing to either welcome or neglect the guidance.

After polling nearly 2,000 companies on their practices, First Advantage found that 63% of respondents feel very confident that their company is compliant with current federal, state or local pre-employment and hiring laws and guidelines. The survey later determined that although many feel their company to be compliant, over half of respondents feel their individual assessment process could be improved.

With that in mind, a list of best practices was compiled to help standardize companies’ processes when performing individualized assessments. Here are a few of those top practices:

1. Maintain a written policy.                                                         

In addition to being a valuable training tool for internal resources, developing and keeping to a formal, documented policy will also help protect a company if ever challenged with a discrimination lawsuit. According to the recent survey, 27% do not have a written protocol for handling criminal record information. Simply creating a written policy and sticking to it will determine how the individualized process will take place.

2. Create a position-specific matrix to identify criminal records and ensure consistency in application.

While they should not be used as an automatic disqualifier, matrices can be useful tools to ensure consistent application takes place across a company for your job positions. A matrix can highlight minor crimes that your company does not believe to be job related as “pass” or “clear.” On the other end, the more job-related crimes can be highlighted as “needs review” so they are escalated to a centralized source. 

3. Train, train train!

Just as it’s important to maintain consistency by establishing a written policy for performing individualized assessments, it is also important to maintain uniformity in the way recruiters, hiring managers and other individuals involved are trained to implement them. Providing a consistent format and retaining all individualized assessment training documentation as proof of completion is highly recommended. The last step would then be to periodically audit behavior to ensure compliance.

As with so many things, consistency is key. Conducting individualized assessments sporadically opens employers up to great risk. In 2015, the EEOC collected $33.5 million in various types of remedies, such as failure to conduct individualized assessments or failure to allow a candidate the opportunity to provide information about his or her conviction. As the EEOC doubles down its focus on the use of criminal history in the hiring process, it is important that companies mitigate the risk by creating and following a standardized individualized assessment process.

To learn more best practices and benchmarks for conducting individual assessments, click here.