The Equal Employment Opportunity Commission has made its position clear: blanket criminal record exclusion policies are discriminatory. The EEOC's "Green factors" framework requires employers to conduct an individualized assessment of criminal history, considering the nature of the offense, how long ago it occurred, and whether the candidate has shown evidence of rehabilitation. Employers who reject all candidates with any criminal history are now facing EEOC investigations and private litigation. Understanding the EEOC's guidance is critical to building a compliant hiring process.
What Are the Green Factors?
In 2012, the EEOC issued guidance on criminal records and Title VII of the Civil Rights Act. The guidance introduced what are now called the "Green factors," named after the case Green v. Missouri Pacific Railroad. These factors require employers to conduct an individualized assessment of criminal history rather than applying blanket disqualification policies.
The Green factors are:
The Nature and Gravity of the Offense
How serious was the crime? A felony is more serious than a misdemeanor. A violent crime is more serious than a property crime. A crime directly related to the job (theft for a cashier) is more serious than an unrelated crime (a DUI for an office worker).
The Time Elapsed Since the Offense
How long ago did the offense occur? A conviction from 20 years ago is less relevant than a conviction from 2 years ago. The EEOC expects employers to consider the passage of time as evidence of rehabilitation.
The Nature of the Job
How does the offense relate to the job duties? A conviction for theft is highly relevant to a cashier position. A conviction for a drug offense is less relevant to an office position. The relevance depends on the specific job.
Information About the Candidate's Rehabilitation
Has the candidate shown evidence of rehabilitation? Are they employed? Do they have letters of recommendation? Have they completed rehabilitation programs? The EEOC expects employers to consider evidence of rehabilitation as a mitigating factor.
How the EEOC Applies These Factors
The EEOC does not expect employers to hire candidates with criminal records. The agency expects employers to evaluate criminal history on a case-by-case basis, considering the Green factors, rather than applying a blanket policy.
Blanket Policies Are Discriminatory
A policy that automatically disqualifies all candidates with any criminal history, regardless of the nature of the offense or how long ago it occurred, is presumed to be discriminatory under EEOC guidance. Employers who apply such policies are exposed to EEOC investigations and Title VII litigation.
Real-World EEOC Enforcement Examples
The EEOC has pursued multiple enforcement actions against employers for blanket criminal record exclusion policies. Here are some recent examples:
- A large retailer was sued for automatically rejecting all candidates with any criminal history, regardless of the nature or age of the offense. Settlement: $10 million.
- A staffing agency was investigated for applying a blanket criminal record exclusion policy that disproportionately affected African American candidates. Settlement: $2.5 million.
- A healthcare provider was sued for automatically disqualifying candidates with any felony conviction without considering job relevance or rehabilitation. Settlement: $1.2 million.
- A transportation company was investigated for a policy that excluded all candidates with any criminal history, even for positions with no safety concerns. Settlement: $500,000.
How to Build an EEOC-Compliant Criminal Records Policy
Here is how to structure your criminal records policy to comply with EEOC guidance:
Do Not Use Blanket Disqualification Policies
Do not automatically reject all candidates with any criminal history. Instead, evaluate each candidate individually, considering the Green factors.
Document Your Assessment
When you find a criminal record, document your assessment. Write down: the nature of the offense, when it occurred, how it relates to the job, evidence of rehabilitation, and why you rejected or did not reject the candidate. This documentation is your proof of individualized assessment.
Consider the Nature and Gravity of the Offense
A violent felony is more disqualifying than a misdemeanor. A crime directly related to the job is more disqualifying than an unrelated crime. Be specific about why the offense is or is not relevant to the position.
Consider the Time Elapsed
A conviction from 20 years ago is less relevant than a conviction from 2 years ago. The EEOC expects employers to give weight to the passage of time as evidence of rehabilitation.
Consider Evidence of Rehabilitation
If a candidate has been employed, has letters of recommendation, or has completed rehabilitation programs, consider this evidence. Do not ignore rehabilitation when making your decision.
Individualized Assessment Is the EEOC Standard
The EEOC's position is clear: blanket criminal record exclusion policies are discriminatory. Employers must conduct an individualized assessment of criminal history, considering the Green factors, for every candidate. This does not mean you must hire candidates with criminal records. It means you must evaluate each candidate individually rather than applying a blanket policy. Employers who make this shift reduce their legal exposure and often find that they hire stronger candidates.
SaffHire helps employers conduct individualized assessments of criminal history that comply with EEOC guidance. We provide detailed criminal records information and help you document your assessment for every candidate. Learn how SaffHire ensures EEOC compliance.
Disclaimer: This article is provided for informational purposes only and does not constitute legal advice. Employers should consult qualified employment counsel for guidance specific to their circumstances and hiring practices.