Hiring and contracting to avoid discrimination

Applying the concepts of job relevance and business necessity
By: | Issue: March, 2014
March 12, 2014

Most of us would agree that Safe Hiring and Safe Contracting programs are an important part of college operations. These issues may become more difficult, though, when they are associated with employee hiring or contractor selection processes and the accompanying consideration of various risks, particularly those related to previous criminal behaviors. It can be further complicated by the fact that access to students, faculty and secure facilities must also be considered in the evaluation. In these cases, attention needs to be paid to potential reputational, financial and/or legal risks.

In the past, many educational institutions relied on what was called a “decision matrix” to determine the level of risk posed by a job applicant or prospective contractor, based on certain types of crimes and convictions. However, the U.S. Equal Employment Opportunity Commission (EEOC) has rejected these matrices as predetermined decisions. Their opinion was that the term decision matrix suggests that cut-and-dried decisions are being made, rather than review and analysis of the proper factors. When a decision matrix is being used universally across all positions instead of designed for a specific job, there is a significant chance of discrimination.

The EEOC found that such matrices, which may result in the rejection of job applicants based on credit history or criminal backgrounds without establishing a proper context, may create a discriminatory impact based on race and national origin if decisions do not reflect job relevance or business necessity. Other considerations are the so called “Green factors,” based on Green v. Missouri Pacific Railroad (more information to follow).

One immediate suggestion, proposed recently by the National Association of Professional Background Screeners, has been to replace the decision matrix with a risk relevancy matrix or an assessment matrix to reflect the fact that these are not predetermined decisions, but rather matrices that provide guidance for an individualized assessment to identify the level of risk based on certain types of crimes or convictions, and to apply their findings accordingly. Automatic or across-the-board exclusions, viewed unfavorably by the EEOC, will not occur after this procedure. Following is a more detailed discussion of this issue and its implications for colleges.

Job relevance, business necessity and “Green factors”

In the college setting, the use of risk assessments can mitigate risk and support the goals of ensuring the safety and welfare of students, faculty, employees, visitors and contractors; as well as the reputation of the institution. Anyone hired for any position, as well as contractors with access to the institution’s people, property or information, should be vetted against these risk factors.

Inclusion of Green factors provides an additional layer of analysis, such as the nature and gravity of the offense and conduct; the time that has passed since the offense or conduct took place and/or completion of the sentence; and the nature of the job held or sought.

Although it is permissible, the use of arrest records is not preferred, with EEOC guidance stating that “the conduct, not the arrest, is relevant for employment purposes.” Further, the guidance “recommends that employers not ask about convictions on their job applications and that if they do make such inquiries that the inquiries are limited to convictions for which {the}exclusion would be job related for the position in question and consistent with business necessity.”

Although these may appear to be difficult distinctions to make, it’s important to review selection factors for employees and contractors through a lens that includes the following:

  • Job relevance: Look at whether a conviction has a direct impact on the person’s ability to perform the job and how it affects the skill set required for job performance. An example might be a contracted individual being considered for a position in the building and grounds department that would require driving college vehicles. The person had been convicted of driving under the influence and lost his/her driver’s license. Because having a driver’s license is a job requirement, the applicant lacks the necessary qualifications for the position. 
  • Business necessity: The employer must be able to demonstrate that the hiring policy supports business necessity and is consistently applied. An example might be the contracted college day care center, in which a convicted pedophile has applied for a caregiver position. The college should not put children in harm’s way by allowing this person to be considered for the position. Another example is that of whether to hire a bookstore applicant with a conviction for shoplifting. In this case, the Green factors may relate to the time that has elapsed since the offense. Completion of the sentence may also come into play. On the other hand, if the conviction was for writing bad checks, the risk review might indicate a different recommendation because the conviction is not relevant to the requirements of the position.

In reviewing job relevancy and business necessity, the risk relevancy assessment should consider the level of access to people, information and finances. All three have unique risk factors. One difficulty facing college employers is that there are no hard and fast rules, so the requirement calls for individual assessments performed by individuals who are trained to analyze risk factors. For example, in looking at Green factors, a rule of thumb is to consider seven years from satisfaction of the sentence as a reasonable period. However, the severity of the crime, as well as the rehabilitative performance after completion of the sentence, also comes into play.

EEOC guidance also prefers that targeted screenings be accompanied by notice to the applicant, allowing that person to explain the circumstances of the conviction. In addition, as noted above, there should be an individual assessment of the person, the conviction and the position. Such an assessment may include a review of the offense, the person’s work history after satisfaction of the sentence and other employment or character references.

Some final thoughts

Recent headlines have demonstrated the importance of adequate screening, particularly related to individuals with ready access to students or other vulnerable populations. One interesting aspect of this conversation is that contractors are still often overlooked in considerations of risk analysis, despite the fact that these contractors are placed in direct contact with students, staff and other employees. A case may be made that risks posed by contractors may be even more worrisome than those of employees, because they operate outside the organization and are not known to the organization. Hired to do a particular job for a certain period of time, they are not vested stakeholders. Since this is a new area of concern, risk managers are just now realizing the importance of appropriately managing these risks.

Finally, there’s the issue of where the responsibility for risk management should reside in the college. In smaller schools, risk management is often part of human resources, while in larger institutions it may be a separate department reporting to the controller or a chancellor responsible for business and finance.

In any event, for the risk management function to operate successfully, the school must clearly define its duties and responsibilities and provide the department head with ready access to the highest levels of management. To do otherwise is to place the entire college community— students, faculty, staff and visitors—as well as the school’s reputation, at needless risk.

—Craig Reilly is CEO of PlusOne Solutions, a provider of comprehensive services that assist organizations with mitigation and management of risks associated with contractor and vendor networks.