What Is an Individualized Assessment in Background Screening?

What Is an Individualized Assessment?

An individualized assessment is a structured evaluation of a candidate's criminal record in the context of the specific job they applied for. Rather than automatically disqualifying anyone with a criminal record, the employer weighs specific factors to determine whether the history actually poses a risk relevant to the position.

The EEOC, and many state laws, require or strongly recommend individualized assessments before using criminal history to make an adverse hiring decision.

The Green Factors

Courts and the EEOC have established a set of factors — often called the "Green factors" — that should be considered in an individualized assessment:

1. The nature and gravity of the offense: Is it a violent crime, a property crime, a drug offense? What were the circumstances?
2. How long ago the offense occurred: A decade-old conviction is treated differently than a recent one
3. The nature of the job: Does the offense relate to the responsibilities of the position? A financial fraud conviction is very relevant for a CFO role; less so for a maintenance technician.
4. Evidence of rehabilitation: Has the person completed education, training, or community service? Do they have strong references?
5. The accuracy of the record: Is the criminal record actually correct, or is there an error that the candidate can document?

When an Individualized Assessment Is Required

• Federal contractors: Required under OFCCP guidance for covered contractors
• New York City: The Fair Chance Act requires a detailed written assessment for any withdrawal of a conditional offer based on criminal history
• Los Angeles and other California jurisdictions: Require written notice and an opportunity to respond
• Any time EEOC guidance is implicated: When criminal history has a disparate impact on a protected class

How to Conduct an Individualized Assessment

1. Notify the candidate in writing that you are considering adverse action based on their criminal history
2. Provide them with a copy of the background check report
3. Give them a reasonable period (typically 5 business days or more) to respond
4. Review any information they provide — documentation of rehabilitation, explanation of circumstances, evidence that the record is inaccurate
5. Make a documented decision based on all the information

Documenting the Assessment

Documentation is critical. For each candidate where criminal history was a factor, maintain a record showing:

• Which conviction(s) were identified
• The specific job duties that were considered
• The factors analyzed
• The candidate's response (if any)
• The final decision and reasoning

This documentation is your defense in the event of an EEOC charge or lawsuit.

At Do It Right Screening, we provide guidance on the individualized assessment process and can help you build the documentation templates you need. Contact us to get started.