EEOC Criminal History Guidance and “Best Practice Standards”

Management Perspective

Pamela Q. Devata, Seyfarth Shaw LLP

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Employers/Management Perspective

• Initial reactions to Guidance

• Most employers have modified policies and practices

• Individualized assessment is toughest issue

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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

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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) 460-5882pdevata@seyfarth.com