How to Conduct Individualized Assessments in Background Checks

In 2012, the Equal Employment Opportunity Commission (EEOC), under Title VII of the Civil Rights Act of 1964, issued guidelines advising employers to consider the specifics of each candidate who may be denied employment based on a background check.

How does the EEOC define individualized assessments?

Per the Equal Employment Opportunity Commission (EEOC), individualized assessments are defined as:

"Individualized assessment generally means that an employer informs the individual that he may be excluded because of past criminal conduct; provides an opportunity to the individual to demonstrate that the exclusion does not properly apply to him; and considers whether the individual's additional information shows that the policy as applied is not job related and consistent with business necessity."

How can employers meet the requirements under Title VII?

According to the commission, employers will consistently meet the "job related and consistent with business necessity" under Title VII if:

1. They developed their screening policy considering the following factors (the three Green factors).
   • The nature and gravity of the offense or conduct.
   • The time that has passed since the offense or conduct and/or completion of the sentence.
   • And the nature of the job held or sought.
2. And then provide an opportunity for an individualized assessment for people excluded by the screen to determine whether the policy as applied is job related and consistent with business necessity.

The individualized assessment would consist of notice to the individual that they have been screened out because of a criminal conviction; an opportunity for the individual to demonstrate that the exclusion should not be applied due to his particular circumstances; and consideration by the employer as to whether the additional information provided by the individual warrants an exception to the exclusion and shows that the policy as applied is not job related and consistent with business necessity.

How to create an individualized assessment process

The best practice is to create and document a fair individualized assessment process that goes hand-in-hand with your adverse action process. You should then distribute and train your hiring managers on these processes. In general, these processes may govern:

1. Which offenses wouldn't adversely affect an employment decision because they are minor, irrelevant, etc.
2. Which factors to examine on a criminal record during an individualized assessment.
3. When, if at all, to ask about criminal history (to comply with "Ban the Box" laws).
4. How to reach out to candidates to gain additional information or context on a criminal record.
5. How to account for severity, age, relevance, and disposition during adjudication.
6. How to document individualized assessments for candidates with whom you will initiate an Adverse Action process.

How Orange Tree can help 

We provide a range of compliance tools to streamline the screening process and keep you in compliance. We provide automated adverse action letters with individualized assessment language and an adjudication tool that supports the regular application of decision criteria within job groups, building consistency into the hiring process.

Automated Adjudication.

Orange Tree's adjudication tool, HireGuide, allows employers to define their hiring policies and adjudication guidelines and is enforced by our adjudication specialists to review discrepancies on applications. This service automates the decision process and makes hiring easier, more consistent, and increases compliance.

HireGuide helps those managing a large number of candidates, creating efficiencies when a candidate's report is clear and controlling information and permissions when a report requires additional review.

Advantages:

• Identifies candidates eligible for the individualized assessment process.
• Supports consistent, company-wide employment decisions within job classifications.
• Minimizes errors throughout the hiring process.
• Reduces the time needed to review results (up to 80%).
• Supports efficient candidate onboarding.

Adverse Action

Orange Tree provides automated FCRA adverse action letter generation and delivery (pre-populated with the candidate's name and address and your company's name) compliant based upon individual state requirements. We also allow you to add your written individualized assessment verbiage into the adverse action notice.

Orange Tree can configure a solution to match your screening program policies and processes.

Schedule a call to learn how we can help you maintain a consistent and compliant hiring process.