What Are Green Factors and Why They Matter for Background Screening

In the landmark 1975 court case Green v. Missouri Pacific Railroad, the Eighth Circuit Court issued a decision that continues to influence employment law today. The court found that it was discriminatory under Title VII of the Civil Rights Act of 1964 for an employer to apply a blanket policy of disqualifying job applicants based solely on a criminal conviction—excluding minor traffic violations. This ruling gave rise to what is now known as Green Factors, a set of criteria employers are expected to consider when making hiring decisions involving criminal histories.

What are Green Factors?

The Green decision addressed the critical issue of fairness in employment practices. It emphasized that while employers have a right to consider criminal histories, such considerations must be job-related and consistent with business necessity. To achieve this, the court identified three essential factors that must guide decision-making:

1. The nature and gravity of the offense or conduct

Employers must consider the specific type of offense and how serious it was. Violent crimes, theft, or crimes involving vulnerable populations may carry more weight compared to low level misdemeanors.

2. The time that has passed since the offense or conduct and/or completion of the sentence

Time can be a critical mitigating factor. An individual convicted 10 or 15 years ago and has since maintained a clean record may not pose the same level of risk as someone with a recent conviction. Employers are encouraged to weigh the recency of the offense against the individual’s rehabilitation efforts, employment history, and character references.

3. The nature of the job held or sought

This factor asks whether the offense is meaningfully related to the job responsibilities. If there’s no connection between the conduct and the job duties, using the conviction as a disqualifier may not be justified. For instance, a drug possession charge might not be relevant for a data entry role but could be more concerning for a commercial driver or healthcare worker with access to controlled substances.

The Risk of Blanket Exclusions

Implementing a blanket policy that excludes all individuals with a criminal conviction from employment, regardless of the nature of the offense or the role being sought, can lead to disparate impact liability under Title VII. Disparate impact occurs when a seemingly neutral policy disproportionately affects individuals in protected classes, such as those based on race or national origin.

Notably, research supports that criminal record exclusions can have a disproportionate effect on certain racial and ethnic groups. The Equal Employment Opportunity Commission (EEOC) stresses that exclusions must be carefully tailored to the job and that employers should avoid disqualifying individuals based solely on arrest records, which do not establish criminal conduct.

EEOC Recommendations for Employers

The EEOC outlines two acceptable paths for employers to demonstrate that criminal history checks are job-related and consistent with business necessity:

1. Validation of the exclusion - Employers can conduct a formal validation study to demonstrate that excluding individuals with specific criminal histories predicts job performance or safety risks for the particular position. This process must follow the Uniform Guidelines on Employee Selection Procedures (UGESP), establishing standards for employer testing and selection tools. While this approach provides strong legal backing, it is often resource-intensive and rarely practical for all roles, especially in smaller organizations.

    

2. Developing a targeted screen that evaluates the Green Factors and includes an opportunity for an individualized assessment. Once this screen flags a candidate, the employer should offer an individualized assessment. This step allows the applicant to provide additional context, such as evidence of rehabilitation, post-conviction conduct, employment history, or circumstances surrounding the offense. The goal is to determine whether the exclusion is genuinely relevant to the job and necessary from a business standpoint.

Although individualized assessments are not always legally required, omitting them increases the risk of violating Title VII. These assessments allow applicants to explain the circumstances of their conviction and demonstrate rehabilitation or fitness for the role. It’s also important to note that compliance with other federal or state laws, such as the Fair Credit Reporting Act (FCRA), can serve as a defense against Title VII claims. Still, conflicting regulations require careful coordination between HR and legal departments to ensure fair and compliant policies.

How DISA Can Help

At DISA Global Solutions, we understand the complexity of navigating criminal background checks while maintaining compliance with federal and state regulations. Our solutions are designed to support employers in building fair, consistent, and compliant hiring practices. From FCRA-compliant background checks to tools that support individualized assessments, DISA helps organizations apply Green Factors effectively and responsibly.