ROUNDTABLE DISCUSSION: The Latest Pronouncements from the EEOC and Your Recruiting and Hiring Processes EMPLOYMENT LAW PRACTICE GROUP

Recruiting/Hiring Process Goals Select employees who will conduct themselves in a lawful and ethical manner.

Recruiting/Hiring Process Goals (cont.) Reduce risk of liability for negligent hiring.

Recruiting/Hiring Process Goals (cont.) Select employees with a history of achievement.

Recruiting/Hiring Process Goals (cont.) Select employees with a history of attendance.

Recruiting/Hiring Screening Tools: Arrest and Conviction Records

Recruiting/Hiring Screening Tools (cont.) High School Diploma

Equal Employment Opportunity Commission 12/02/2011 Informal Discussion Letter

EEOC: Any qualification standard (such as a diploma requirement) must be job related and consistent with business necessity.

EEOC: Unless job related and consistent with business necessity, a diploma requirement may violate ADA.

Equal Employment Opportunity Commission 04/25/2012 Enforcement Guidance

EEOC: Unless job related and consistent with business necessity, screening applicants on the basis of arrest and conviction records may violate Title VII.

Proving Job Relatedness/Business Necessity: Essential Functions of Position

Proving Job Relatedness/Business Necessity (cont.) Screening tool is a valid/reliable predictor of ability to perform essential functions.

Best Practices Validation Study – 29 C.F.R

Best Practices (cont.) Consider the nature and gravity of the offense/conduct.

Best Practices(cont.) Consider the time that has passed since the conduct/completion of sentence.

Best Practices(cont.) Consider specifics of supervision and interaction of position.

Best Practices(cont.) Develop an individualized assessment Look past the pass/fail nature of screening tool to focus on one specific quality you are using the screening tool to measure.

Best Practices(cont.) Example: XYZ Inc. has a policy of excluding applicants with arrest records from cashier positions on trustworthiness grounds.

Best Practices(cont.) XYZ should instead focus on the underlying conduct leading to the arrest.

Best Practices (cont.) XYZ should also allow applicant the opportunity to explain the circumstances.

Best Practices (cont.) Perform reasonable accommodation analysis if ADA is implicated.

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