EEOC Individualized Assessment Guide
How to evaluate criminal history in hiring decisions using the three Green factors—with practical templates and documentation checklists for HR professionals.
An EEOC individualized assessment is the process employers should follow when criminal history information surfaces during a background check. Based on the landmark Green v. Missouri Pacific Railroad (1975) decision, this framework evaluates three factors—nature of the offense, time elapsed, and job relevance—to ensure hiring decisions are fair, consistent, and legally defensible under Title VII of the Civil Rights Act.
The Three Green Factors
Every individualized assessment must evaluate these three factors established by the Eighth Circuit Court of Appeals.
Nature and Gravity of the Offense
Assess the seriousness of the criminal conduct. Consider whether the offense was violent, involved dishonesty, or is directly related to the responsibilities of the position.
Assessment Questions:
- Was the offense violent or non-violent?
- Did the offense involve theft, fraud, or dishonesty?
- Was the offense a misdemeanor or felony?
- Were there victims, and what was the impact?
- Is the offense directly related to the job duties?
Time Elapsed Since the Offense or Completion of Sentence
Evaluate how much time has passed since the conviction or completion of the sentence. Longer time without reoffense suggests rehabilitation and reduced risk.
Assessment Questions:
- How many years since the conviction or sentence completion?
- Has the individual reoffended since?
- What evidence of rehabilitation exists (education, employment, community service)?
- Has the individual completed all terms of their sentence, probation, or parole?
- Are there character references or professional certifications obtained post-offense?
Nature of the Job Held or Sought
Determine whether the criminal conduct is relevant to the specific duties and responsibilities of the position. A conviction for embezzlement is more relevant for a bookkeeper than for a landscaper.
Assessment Questions:
- Does the role involve access to vulnerable populations (children, elderly)?
- Does the role involve financial responsibility or fiduciary duties?
- Does the role require driving or operating heavy equipment?
- Is the role in a regulated industry with specific disqualification standards?
- Does the role involve unsupervised access to personal data or property?
6-Step Assessment Process
Follow this template to ensure every individualized assessment is thorough, consistent, and audit-ready.
Notify the Candidate
Send a pre-adverse action notice with a copy of the background check report and a Summary of Rights under the FCRA. This begins the individualized assessment process.
Apply the Three Green Factors
Document your evaluation of each Green factor: the nature/gravity of the offense, time elapsed, and relevance to the job. Use a standardized scoring worksheet.
Request Candidate Input
Give the candidate a reasonable opportunity (typically 5–10 business days) to provide mitigating information such as rehabilitation evidence, inaccuracy claims, or context.
Review Mitigating Information
Evaluate any information the candidate submits. Consider evidence of rehabilitation, employment stability, education, community involvement, and character references.
Make a Documented Decision
Reach a final, documented hiring decision. If you proceed with adverse action, send the required adverse action notice with dispute rights under the FCRA.
Retain Records
Maintain all assessment documentation, candidate correspondence, and decision rationale for at least 2 years (or longer per state requirements) for audit defensibility.
Assessment Do's & Don'ts
Common practices that strengthen—or undermine—your individualized assessment process.
Do
- Use a standardized assessment form for every candidate
- Document the specific Green factors analysis for each decision
- Allow candidates a meaningful opportunity to respond
- Train all hiring managers on EEOC individualized assessment requirements
- Consult legal counsel when denying employment based on criminal history
Don't
- Apply blanket bans on all individuals with criminal records
- Treat arrest records the same as convictions
- Ignore state and local ban-the-box laws during the assessment
- Rush the process without giving candidates time to respond
- Fail to consider rehabilitation evidence submitted by the candidate
An EEOC individualized assessment evaluates three Green factors—the nature and gravity of the offense, time elapsed since the offense, and the nature of the job—to determine whether a candidate's criminal history is relevant to the position. Employers who follow this framework, document their analysis, and give candidates a meaningful opportunity to respond significantly reduce their risk of Title VII disparate impact liability.
EEOC Individualized Assessment FAQ
Answers to common questions about conducting individualized assessments.
Related Compliance Resources
Adverse Action Guide
FCRA-compliant adverse action procedures after completing your assessment.
Screening Best Practices
Build a complete, legally defensible screening policy for your organization.
Negligent Hiring Risk
How proper assessments protect against negligent hiring claims.
EEOC Guidelines Overview
Full overview of EEOC employment screening recommendations.
Salary History Ban Guide
State-by-state salary history inquiry restrictions and HR policy templates.
Pay Transparency Guide
State pay range disclosure requirements and job posting compliance obligations.
Educational Information Only
This guide is for educational purposes and does not constitute legal advice. EEOC guidance, state laws, and local ordinances vary and are subject to change. Consult with a qualified employment attorney for advice specific to your organization.
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