How to Conduct an Individualized Assessment

An individualized assessment, as defined by the EEOC, is part of the hiring process that takes place when an employee is excluded from eligibility for a job due to past criminal activity found on a background check. Still, the employer allows the individual to demonstrate and explain how the policy doesn’t accurately apply to them or how their past criminal conduct would not impact their job ability.

These guidelines are part of the EEOC’s 2012 published guidance on how to consider arrest and convictions while making fair employment decisions.

An individualized assessment describes the unique way an employer reviews and considers criminal records found during a background check. Rather than ruling out the candidate based on the face value of their criminal offense, you, as the employer, can consider the specific charges, the circumstances surrounding the violations, and the requirements of the role at hand as well as how this criminal offense may impact their ability to perform the role.

The individualized assessment can occur before or during the Adverse Action process. When hiring, your responsibility to perform individualized assessments on candidates comes from fair hiring laws at the local, state, and federal levels. Conversely, Adverse Action is required by law under the Fair Credit Reporting Act (FCRA). You may be able to avoid the Adverse Action process by performing a fair individualized assessment beforehand, considering factors such as their prior history and any rehabilitation after the fact.

Employers like you should conduct individualized assessments for various reasons. Not only is it essential to stay compliant with the EEOC’s enforcement guidelines, but it can also make a positive and long-lasting impact on the candidate. An individualized assessment can allow individuals to explain the circumstances of their past actions and give them a chance at employment despite their histories. These individuals often find it difficult to secure jobs due to their past criminal records, with over 60% remaining unemployed one year after being released from incarceration.

In addition, employers can avoid potential discrimination allegations by conducting individualized assessments of candidates. Employers can protect themselves from discrimination accusations by showing that they have taken steps to evaluate applicants fairly and consider any mitigating factors when making decisions.

To give candidates a fair shot and avoid discriminatory hiring practices, you can develop an individualized assessment process that your company can follow whenever it runs into candidates found to have a criminal record following a background check. Here’s some guidance to create an individualized assessment process for your company.

• Build Your Panel: Create a team of decision-makers responsible for the individualized assessment. Include both members from HR and department heads directly involved with a given role to ensure that everyone’s perspective is considered.
• Write a Policy: Create a written policy for conducting individualized assessments. Include details such as who is responsible for evaluating the candidate, what criteria will be used to assess the circumstances of their criminal record, and how you will ensure that all factors are considered fairly.
• Create a Documentation Form: Create an individualized assessment form that you can use for each candidate to document any context, mitigating factors, or rehabilitation efforts (counseling, programs, courses, personal references) and keep the records for future reference.
• Address Bias: Acknowledge any present biases and ensure you’re objectively assessing. Have each team member document their decision-making process to avoid the possibility of discrimination, as you should be able to show your work as to how you arrived at a decision one way or the other.
• Keep It Objective: Consider using the nature/time/nature test as part of your process. This process has three parts – the first, considering the nature and weight of the criminal offense; the second, considering how long ago the crime was committed; and third, the nature of the job in question and the impact the offense may have upon it.
• Communicate as a Team: Schedule regular meetings with your team to discuss any individualized assessments you have conducted and bring everyone onto the same page regarding the complete process.
• Communicate with the Candidate: Keep a clear, open line of communication with your candidates throughout the process. Make sure they understand the assessment procedure and when a decision will be made.
• Maintain Privacy: If you decide to hire a candidate after completing their individualized assessment, keep their background private to protect them from any biases in the workplace. Do not share information gathered in the evaluation beyond the decision-making team.