The EEOC enforces Title VII of the Civil Rights Act of 1964 (Title VII) which prohibits employment discrimination based on race, color, religion, sex, or national origin. This Enforcement Guidance is issued as part of the Commission’s efforts to eliminate unlawful discrimination in employment screening, for hiring or retention, by entities covered by Title VII, including private employers as well as federal, state, and local governments. (eeoc.gov)
These civil right protections relating to employment discrimination have been dubbed “Green Factors” based on Green vs Missouri Pacific Railroad decision. As stated above, an employer cannot decline to hire or fire a job applicant or employee based on the following: race, color religion, sex national origin or any other protected class.
The “Green Factors” include:
- The nature and gravity of the offense or conduct
- Time passed since the offense, conduct or completion of sentence
- Nature of job held or sought
First Green Factor: The nature and gravity of the offense or conduct.
It is necessary to fully consider the nature and gravity of the offense or conduct. Employers should consider the offense. For example: a sexual assault vs. a verbal assault; a petty theft vs. embezzlement; several convictions vs. a single conviction.
Second Green Factor: Time passed since the offense, conduct or completion of sentence.
Consider the time passed since the offense, conduct or completion of sentence when hiring. The general time-frame employers’ look for a clean record when hiring varies, however, it must be documented in your company procedures and adhered to.
Also take the time to look at what the person has been doing since the completion of their sentence. Look at where their future employment goals are and what they have been doing with their time to stay out of trouble with the law.
Third Green Factor: Nature of job held or sought.
The last Green Factor is to look at the nature of the job held or sought. Some industries have strict guidelines that must be adhered to. For example: You cannot have an assault and work in a care industry. You cannot have a felony and work in ammunition.
The nature of the job duties and level of supervision will determine what types of criminal history will be acceptable for each position. Keep your hiring decisions consistent with your company policies.
Staying compliant in a Ban the Box state.
When you are hiring in a state that has Ban the Box legislation, you cannot ask any criminal history questions until you have made a tentative job offer. Eliminate all questions about arrests or conviction history from your application, screening processes and interview process. Ensure that you have a company policy in place that allows criminal conviction inquiries only at the provisional offer stage.
If you have any additional questions regarding company hiring compliance, contact one of our consultants today.