eeoc criminal history guidance and “best practice standards” management perspective pamela q....
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Comparison of Guidance and Best Practices Document ©2015 Seyfarth Shaw LLP 3 | EEOC GuidanceBest Practices DocumentEffect on Employers/Other Arrests are per se disparate impactConsider only pending/convictionsState restrictions (IL, NY, CA) Likely disparate impact unless job relatedConsider only job related convictionsLegal defense Time since offense as a factor Consider recent enough for significant risk What does “significant risk” mean Removed criminal history question from application Remove criminal history from application Can still ask the question. Mitigates risk Targeted ScreenCRA reporting only relevant and recentTime saving mechanism Individualized AssessmentConsider Evidence of RehabilitationNY Article 23-A/Consider timing of request for infoTRANSCRIPT
EEOC Criminal History Guidance and “Best Practice Standards”
Management Perspective
Pamela Q. Devata, Seyfarth Shaw LLP
©2015 Seyfarth Shaw LLP2 |
Employers/Management Perspective
• Initial reactions to Guidance
• Most employers have modified policies and practices
• Individualized assessment is toughest issue
©2015 Seyfarth Shaw LLP
Comparison of Guidance and Best Practices Document
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EEOC Guidance Best Practices Document Effect on Employers/Other
Arrests are per se disparate impact Consider only pending/convictions State restrictions (IL, NY, CA)
Likely disparate impact unless job related Consider only job related convictions Legal defense
Time since offense as a factor Consider recent enough for significant risk
What does “significant risk” mean
Removed criminal history question from application
Remove criminal history from application
Can still ask the question. Mitigates risk
Targeted Screen CRA reporting only relevant and recent Time saving mechanism
Individualized Assessment Consider Evidence of Rehabilitation NY Article 23-A/Consider timing of request for info
©2015 Seyfarth Shaw LLP
Best Practices for Employers
• Revise policies and procedures in accordance with law and EEOC Guidance
• Consider removing criminal history question from application• After interview or after conditional offer • Still want falsification argument
• Consider providing opportunity to respond to individualized assessment at time of criminal question
• Ensure staffing companies are following same• Review descriptions/convictions that are concerning and
make a record of why• Consider asking an outside expert to assist
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©2015 Seyfarth Shaw LLP5 |
For More Information/Questions:
• Pamela Q. DevataSEYFARTH SHAW LLP131 South Dearborn Street, Suite 2400Chicago, Illinois 60603(312) [email protected]