If you uncover a criminal conviction on a candidate’s background check, you need to evaluate it carefully before making a hiring decision.
As a background check provider, we’ve seen firsthand how employers create costly problems when they automatically disqualify applicants with criminal records.
In this guide, we’ll walk you through what individualized assessments are and how they can help you make fair and compliant hiring decisions.
Key Takeaways
- An individualized assessment is an EEOC-recommended process through which employers consider specific factors to evaluate a candidate’s criminal record in relation to the job before deciding not to hire based on that information.
- The EEOC recommends that employers assess criminal records based on the three “Green factors”. These factors are the conviction’s recency, nature, and severity, and its relatedness to the position’s duties.
- To follow best practices for conducting individualized assessments, create a thorough policy, train HR staff, evaluate criminal history in context, conduct assessments at the appropriate time, provide applicants with the opportunity to respond, consider evidence of rehabilitation, and document the assessment process and your hiring decision.
What is an Individualized Assessment?
An individualized assessment is a process recommended by the Equal Employment Opportunity Commission (EEOC) for employers to complete when they learn about a candidate’s criminal record through an employment background check.
To complete this process, you should consider the nature of the offense and how it relates to the job for which you’re considering the candidate.
Take into account the conviction’s recency, severity, and relevance to the position. Also, evaluate whether the conviction could impact workplace safety.
You should conduct individualized assessments when you learn that a candidate has a criminal conviction during the hiring process, typically after making a conditional job offer or after completing a pre-employment background check.
Other times when an individualized assessment might be necessary include when you learn about a current employee’s new conviction information after a subsequent background check.
Why Should You Conduct an Individualized Assessment?
Most employers conduct individual assessments even when their state does not legally require them.
When you conduct individualized assessments of conviction records, you:
- Reduce your risk of unlawful employment discrimination and disparate impact claims
- Align with the EEOC’s enforcement guidance for employers
- Build a documented record of best practices that protects you in litigation
- Evaluate candidates more accurately and fairly
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Federal Guidance vs. Legal Requirements
The EEOC is the federal agency responsible for enforcing Title VII of the Civil Rights Act of 1964 and other major federal anti-discrimination laws.
The EEOC issued enforcement guidance for employers about what they should do when they learn about an applicant’s criminal history and recommended that they conduct individualized assessments.
While this is a federal recommendation by the EEOC, individualized assessments are not mandated by federal statute or regulation.
However, some state and local jurisdictions do require individualized assessments.
While their guidance isn’t a law, the EEOC strongly encourages it.
The EEOC suggests that employers evaluate the following green factors about a conviction:
- The nature and gravity of the offense – This includes whether the offense was a felony or misdemeanor and the offense type.
- How much time has passed since the offense and/or the applicant’s completion of the sentence – Typically, older convictions should not weigh as heavily as more recent offenses.
- Whether the offense relates to the job’s duties – This involves considering whether the offense type would affect the applicant’s ability to perform the job. For example, a person with a theft conviction might not be a good fit for a position in a financial institution.
- How the information might impact workplace safety – If the conviction indicates the applicant has a propensity for violence and could pose a risk to other employees or the public, this factor might result in a decision not to hire.
While this is a federal recommendation by the EEOC, individualized assessments are not mandated by federal statute or regulation.
Courts have generally treated individualized assessments as best practice rather than a mandatory process.
Having documentation demonstrating that you evaluated an applicant’s criminal history as it related to the position’s requirements and workplace safety can be strong evidence supporting a defense against an employment discrimination claim.
However, some state and local jurisdictions do require individualized assessments.
Where Individualized Assessments Are Required
While individualized assessments aren’t specifically required by federal law, several states and local governments require them as a part of their fair chance laws.
California
Under the California Fair Chance Act, California mandates individualized assessments when an employer wants to deny employment based on criminal history information.
Employers must consider the nature of the offense, how much time has passed, and how the conviction relates to the job’s duties.
If an employer decides to deny employment after completing the assessment, they must provide the applicant with a written notice detailing their reasoning.
An applicant who is denied employment has a right to appeal the decision.
Other Jurisdictions With Similar Requirements
- Louisiana – Passed in 2021, Louisiana RS 23:291.2 prohibits employers from considering arrests and charges that didn’t result in convictions (other than pending charges). It also requires Louisiana employers to conduct individualized assessments for other criminal information, including convictions. This assessment mirrors the process recommended by the EEOC. Employers must also provide a copy of the applicant’s background check if requested.
- Colorado – Colorado passed a fair chance law in 2012 that applies to public employers and incorporates the EEOC’s individualized assessment process. This law requires public employers to consider the three factors (nature of the offense, time elapsed, and relatedness to the job) before making a final decision not to hire based on that information. While the state also passed a fair chance law that applies to private employers in 2019, it doesn’t expressly require individualized assessments. However, they are strongly recommended.
- Delaware – Delaware enacted a law in 2014 that applies to public employers. It requires state employers to conduct individualized assessments that include an evaluation of the three factors before making adverse employment decisions. The law exempts jobs that require the consideration of criminal history under state or federal law, including law enforcement and others.
- Hawaii – Under R.S. § 378-2.5, Hawaii employers must wait until after a conditional job offer before conducting a criminal background check. Employers can’t consider felony convictions older than seven years or misdemeanors older than five years. If they want to deny employment for a conviction that occurred more recently than the lookback period, they can do so only if the conviction rationally relates to the job’s duties unless otherwise required under federal or state law.
- Illinois – Under 775 ILCS 5/2-103.1, employers can’t refuse to hire someone based on a criminal record unless it substantially relates to the job or it would pose an unreasonable risk to workplace safety. Employers in Illinois must consider multiple factors to determine whether a substantial relationship exists, including the nature of the offense, how much time has elapsed, the number of convictions, the facts and circumstances surrounding the offense, and evidence of rehabilitation, before making a final adverse employment decision.
- New York – Under NY Corr. Law Art. 23-A, New York employers are prohibited from barring applicants based on having one or more criminal convictions. Employers must evaluate the conviction information to determine whether it directly relates to the job’s requirements and/or could potentially impact workplace safety before basing a decision not to hire them based on that information.
- Washington, D.C. – The District of Columbia Fair Criminal Record Screening Amendment Act of 2014 is a fair chance hiring law that requires employers to complete individualized assessments when applicants have criminal records. The factors include the amount of time that has elapsed, the individual’s age at the time of the offense, how and whether the conviction will affect the individual’s ability to perform the job, the duties and responsibilities the job requires, the severity and number of offenses, and any evidence the individual provides that they have been rehabilitated.
Numerous cities and counties have also enacted fair chance laws that incorporate individualized assessments, including New York City, Los Angeles, San Francisco, Philadelphia, and others.
These laws often require:
- A written individualized assessment and specific factors to consider
- Providing an opportunity for the applicant to respond
- Waiting period before making a final denial
To understand the requirements in your area, consult legal counsel.
Federal Law
Fair Credit Reporting Act (FCRA)
The Fair Credit Reporting Act (FCRA) is a major federal consumer privacy law that protects consumers’ privacy in the information collected and reported by consumer reporting agencies (CRAs), including companies that provide employment background checks.
This law also covers employers that partner with background check companies for hiring.
While the FCRA requires employers to provide notice to applicants that they conduct background checks and obtain their written consent before initiating them, it does not mandate individualized assessments.
Instead, the FCRA requires employers to complete the adverse action process when they decide not to hire someone based on negative information they learn from background checks.
This process involves the following steps:
- Send a pre-adverse action notice to the applicant. Include the report that contains the negative information, together with a summary of their FCRA rights.
- Give the applicant a reasonable time to respond (typically, five business days) with evidence that the information is wrong or that they have been rehabilitated.
- Send a final adverse action notice to the applicant, together with a copy of their FCRA rights, if you ultimately decide not to hire them.
The adverse action process focuses on procedure rather than the criteria you use to make a final decision.
By contrast, an individualized assessment looks at the criteria you use to make your decision.
Best Practices for Conducting Individualized Assessments
1. Maintain a Written Individualized Assessment Policy
To ensure consistency and compliance in hiring decisions, create a formal policy that outlines how you will conduct individualized assessments.
Your policy should describe when assessments should occur, what factors should be considered, and how HR personnel should document decisions.
2. Train HR Staff and Hiring Managers
You should thoroughly train HR professionals and hiring managers to conduct individualized assessments.
Training helps ensure your hiring process is consistent and reduces the risk of discrimination claims.
Make sure you address fair chance laws, the EEOC’s guidance, and your company’s internal procedures.
3. Evaluate Criminal History in Context
Avoid blanket bans against individuals with criminal records.
Instead, you should review an applicant’s criminal history and how it relates to the specific job for which they’re being considered.
For example, while a theft conviction might relate too closely to a job requiring the applicant to handle your business’s or customers’ money, a disorderly conduct conviction likely would not.
The EEOC’s recommendations incorporate the Green Factors outlined by the U.S. Court of Appeals for the Eighth Circuit in Green v. Missouri Pacific Railroad, 381 F. Supp. 992 (E.D. Mo. 1974).
These factors establish a framework for assessing criminal history in a way that avoids disparate impact discrimination.
4. Conduct Assessments at the Appropriate Stage of Hiring
To ensure fairness, wait to conduct individual assessments until after you’ve made a conditional job offer or until an applicant’s criminal history is revealed in a background check.
Many fair chance laws require employers to wait until later in the hiring process to inquire about an applicant’s criminal history.
This timing helps ensure that you evaluate candidates first based on their qualifications rather than their criminal history.
5. Notify Candidates When Criminal History May Affect Hiring
When an applicant’s criminal history appears in a background check, you should notify them that it may impact your hiring decision.
This step also aligns with the pre-adverse action step required by the Fair Credit Reporting Act (FCRA), which requires you to notify applicants when negative information in a background check may lead to an adverse hiring decision.
6. Provide Applicants an Opportunity to Respond
Before you make a final hiring decision based on a candidate’s criminal record, you need to give them an adequate time to respond.
In most cases, this should be five business days. This provides the candidate an opportunity to review the report and dispute inaccuracies.
They can also provide information about mitigating circumstances surrounding the offense or present evidence demonstrating rehabilitation.
Some jurisdictions require a waiting period before you can take final adverse action.
7. Consider Evidence of Rehabilitation
Employers should review evidence that demonstrates rehabilitation or reduced risk.
For example, if a candidate has a DUI conviction on their record that is five years old but has since completed alcohol rehabilitation and maintained sobriety, this evidence might demonstrate that they no longer pose a safety risk.
Employers can make more informed hiring decisions when they consider evidence demonstrating rehabilitation.
8. Document the Assessment and Hiring Decision
When you complete a written individualized assessment, you should retain records explaining how you reached your decision.
Your documentation should explain the factors you considered and the candidate’s responses.
If the candidate later files a claim alleging discrimination, your documentation can show that you complied with fair chance laws and provide a strong defense.
iprospectcheck: Your Trusted Partner for Compliant Background Checks
Even if you’re not required to conduct individualized assessments, doing so can ensure your hiring process is fair and consistent and protect against liability risks.
At iprospectcheck, we conduct thorough background checks for companies across the US and can help you understand the individualized assessment process.
To learn more about our background checks or get a free quote, contact us today: (888) 509-1979.
DISCLAIMER: The resources provided here are for educational purposes only and do not constitute legal advice. Consult your counsel if you have legal questions related to your specific practices and compliance with applicable laws.
FAQs
Can an employer still deny employment after an individualized assessment?
Yes. As an employer, you can deny employment to an applicant after completing an individualized assessment.
Make sure to assess the conviction information as it relates to the job’s duties and workplace safety concerns.
If the conviction relates too closely to the position’s requirements or could potentially impact the safety of your workplace, you can deny employment.
Complete the steps of the adverse action process under the FCRA and retain documentation of both those steps and the assessment you completed.
Is an individualized assessment required for every background check?
No. The EEOC recommends employers individually assess criminal history information that they learn about on background checks before basing an adverse hiring decision on that information.
If an applicant doesn’t have any criminal history revealed in a background check, an individual assessment is unnecessary.
However, if they have other negative information reported in a background check, you should still complete the adverse action steps before making a final decision not to hire them.
Are individualized assessments only used during hiring?
No. Individualized assessments can be used at other points of the employment relationship.
For example, you might need to individually assess an employee’s new criminal history information post-hire.
Individual assessments might be necessary when an employee is up for a promotion or job transfer, or when a subsequent background check reveals a new criminal conviction or pending charge.
