"Updated Enforcement Guidance From the EEOC Regarding Criminal Background Checks"

Greensfelder Employment & Labor Newsletter
May 2012

Last week, the Equal Employment Opportunity Commission issued updated Enforcement Guidance on employers’ use of arrest and conviction records in making hiring, termination and other employment decisions. For years, the EEOC has taken the position that making an employment decision based solely on an individual’s criminal record may violate Title VII. This new Guidance is largely the result of statistics showing that African-Americans and Hispanics are convicted at a rate that is disproportionately higher than their representation in the general population, employers’ easy access to criminal data, and cases interpreting Title VII.  The EEOC states that the Guidance offers clarification of its existing rules.

According to the Guidance, an employer’s use of an individual’s criminal history in making employment decisions may violate the prohibition against employment discrimination under Title VII. Specifically, a Title VII violation may occur if an employer treats job applicants with similar criminal histories differently because of their color, national origin or other protected characteristic (disparate treatment discrimination) or if an employer’s uniform treatment of criminal histories results in the exclusion of people of a particular race or national origin from employment (disparate impact discrimination).

With respect to arrests, the EEOC repeats its prior position that an arrest record, standing alone, may not be used to deny employment, as an arrest does not establish that underlying criminal conduct has in fact occurred. An employer may, however, in some circumstances, make an employment decision based only on the conduct underlying the arrest, not the arrest itself, if the conduct makes the individual unfit for a certain positions. (Note, however, that many states have laws prohibiting an employer from inquiring into or considering an individual’s arrest records).

With respect to convictions, the Guidance recommends that employers not ask a blanket question about convictions on a job application. While in most instances a conviction does serve as sufficient evidence that an applicant engaged in the underlying criminal conduct, the EEOC nevertheless discourages reliance solely on the conviction record when making an employment decision.  The Guidance asserts that an employment policy or practice that excludes everyone with a criminal record from employment will not be “job related and consistent with business necessity” and therefore will violate Title VII. Instead, the employer’s inquiry about an applicant’s conviction history should be limited to convictions that are “job related and consistent with business necessity”.

While providing no bright line definition, the Guidance does offer two circumstances where the EEOC believes employers will meet the “job related and consistent with business necessity” defense. First, the employer can use the Uniform Guidelines on Employee Selection Procedure Standards to demonstrate that certain criminal conduct relates to subsequent work performance.  Validating the criminal conviction screen in this manner will likely be very time consuming, financially costly, and may be impossible if data about how certain criminal conduct related to subsequent work performance simply does not exist. We anticipate that few employers will utilize this mechanism.

Second, the employer can develop a screen that considers three factors when evaluating an individual’s criminal convictions: (a) the nature and gravity of the criminal offense; (b) the time that has passed since the offense occurred and / or completion of the sentence; and (3) the nature of the job held or sought. Additionally, applicants who are screened as a result of this process should be afforded an individualized assessment by the employer.  In other words, the EEOC expects employers to examine each applicant with a criminal history on a case-by-case basis.

This individualized assessment is the biggest change in the Guidance. The Guidance discusses a number of factors an employer should consider when making such an individualized assessment, including: the facts or circumstances surrounding the offense; the number of offenses for which the individual was convicted; the age at the time of the conviction or release from prison; evidence that the individual performed the same type of work after his conviction with no known incidents of criminal conduct; the length and consistency of employment history before and after the offense; the individual’s rehabilitation efforts; employment or character references and any other information regarding fitness for the position; and whether the individual is bonded under a federal, state or local bonding program. The individualized assessment will undoubtedly be burdensome and time consuming for employers.  Additionally, the Guidance specifically provides, “The individualized assessment would consist of notice to the individual that he has been screened out because of a criminal conviction; an opportunity for the individual to demonstrate that the exclusion should not be applied due to his particular circumstances; and consideration by the employer as to whether the additional information provided by the individual warrants an exception to the exclusion and shows that the policy as applied is not related and consistent with business necessity.” Note, however, that if the applicant does not respond to the employer’s attempt to gather data through this individualized assessment, the employer can proceed with making the employment decision without the additional information. 

The EEOC’s Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment decisions Under Title VII of the Civil Rights Act of 1964 is available athttp://www.eeoc.gov/laws/guidance/qa_arrest_conviction.cfm. The EEOC’s Questions and Answers About the EEOC’s Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII is available athttp://www.eeoc.gov/laws/guidance/arrest_conviction.cfm.

Please contact any of the members of our Employment & Labor Practice Group with questions about the Guidelines or to discuss changes to your company’s job applications, policies and practices related to criminal background checks.

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