EEOC issues Guidance on use of arrest and conviction records in employment decisions
Odds are that your company utilizes information gleaned from a criminal background check when making employment decisions. Indeed, in a recent survey by the Society for Human Resource Management, 92 percent of responding employers stated that they subjected all or some of their job candidates to criminal background checks. So, it was not surprising when the Equal Employment Opportunity Commission (EEOC) recently issued new Enforcement Guidance (Guidance) for employers on the appropriate use of arrest and conviction records (click here for more information).
The EEOC’s Guidance provides employers with a general roadmap for avoiding liability under Title VII of the Civil Rights Act of 1964 (Title VII), as amended, based on use of criminal background information. The EEOC’s Guidance, however, does not really contain “new” information, but rather, serves to formalize the EEOC’s historical stance on an employer’s proper use of criminal background information. Regardless, in light of the newly-published EEOC Guidance and the EEOC’s stated commitment to increasing its focus on systemic discrimination (or class action) cases, employers are well-advised to revisit their criminal background check policy and ensure that managers, supervisors and decision-makers are properly trained to implement the policy.
BackgroundThe EEOC enforces Title VII, which prohibits employment discrimination based on race, color, religion, sex, or national origin. Having a criminal record is not listed as a protected basis in Title VII. However, the EEOC states that an employer’s use of an individual’s criminal history in making employment decisions may, in some instances, lead to discrimination under Title VII. According to the EEOC, nation-wide statistics indicate that use of criminal background information in employment decisions is likely to have a disproportionate effect on individuals based on race and national origin.
Can employers still use criminal background checks? Yes, with appropriate caution and restrictions. Title VII liability for employment discrimination is determined using two analytic frameworks: disparate treatment and disparate impact. Under a disparate treatment analysis, a violation of Title VII may occur when an employer treats criminal background information differently for different applicants or employees, based on their race, national origin, or other protected basis. For example, there is Title VII disparate treatment liability where the evidence shows that an employer rejected an African American applicant based on their felony theft conviction but hired a similarly-situated Caucasian applicant with a comparable criminal record. Likewise, the EEOC explicitly states that decisions not based on job qualification, but on racial or ethnic stereotypes about criminality are unlawful disparate treatment that violates Title VII.
Under a disparate impact analysis, an employer is liable for violating Title VII when an individual demonstrates that the employer’s facially neutral policy or practice (e.g., excluding applicants from employment based on certain criminal conduct) has the effect of disproportionately screening out a Title VII-protected group and the employer fails to demonstrate that the policy or practice is job-related for the position in question and consistent with business necessity. Further, the EEOC makes clear that even if your company has a racially balanced workforce, you may still be liable if your criminal background check policy has a disproportionate impact and you are unable to demonstrate that it is job-related and consistent with business necessity.
How do you demonstrate that your policy or practice is job-related and consistent with business necessity? It is clear from the Guidance that a blanket exclusion relative to criminal history (e.g., policy of disqualifying for employment any applicant with a conviction for any crime other than a minor traffic offense) is not likely to survive EEOC scrutiny. Thus, the EEOC lists three factors that are relevant to assessing whether a policy or practice of excluding individuals based on criminal background information is job-related for the position in question and consistent with business necessity:
- The nature and gravity of the offense or conduct
- The time that has passed since the offense or conduct and/or completion of the conviction
- The nature of the job held or sought
Consideration should also be given to whether another, less discriminatory policy would allow the employer to achieve its stated goal or purposes.
While not mandatory, the Guidance also suggests that an employer may want to individually assess the people excluded by the criminal background screen to determine whether the policy or practice as applied is job-related and consistent with business necessity. Relevant factors may include:
- Evidence that the individual performed the same or similar work post-conviction, with no known incidents of criminal conduct
- Rehabilitation efforts, including education or training
- Employment or character references and other information regarding fitness for the particular position
Employers should exercise caution when making individual assessments to avoid a claim of disparate treatment. It may be best to prepare and follow a written policy to ensure consistency.
Is there a difference between arrest records and criminal convictions? Yes. According to the EEOC, the fact of an arrest does not establish that criminal conduct has occurred, and an exclusion based on an arrest, in itself, is not job-related and consistent with business necessity. In contrast, a conviction record will usually serve as sufficient evidence that a person engaged in particular conduct. Therefore, although an arrest record standing alone may not be used to deny an employment opportunity, an employer may make an employment decision based on the conduct underlying an arrest if the conduct makes the individual unfit for the position in question. The conduct, not the arrest, is relevant for employment purposes.
What are some best practices when using criminal record information in employment decisions?
- Avoid categorical bars to employment based solely on any criminal record
- Train managers/supervisors/decision-makers on compliance with Title VII, proper use of criminal history information, and implementation of any criminal background check policy and/or procedure
- Ensure that any written policy or procedure for screening applicants and employees relative to criminal history is narrowly-tailored: identify essential job requirements and the actual circumstances under which the jobs are performed; determine the specific offenses that may demonstrate unfitness for performing such jobs; determine the duration of exclusions for criminal conduct based on all available evidence
- Record the justification for the policy and/or procedure and retain any relevant information, including any validation studies, research or statistics
- Consider avoiding broad, blanket questions regarding criminal history on applications, or early in the interview process
- Maintain confidentiality of applicants and employees’ criminal records
- Ensure compliance with any relevant state laws regarding proper use of criminal record information
Conclusion While an employer can still obtain information regarding an individual’s criminal history, how that information is used in the employment context is likely to come under increased scrutiny. As the “new” Guidance makes clear, there are a number of factors that employers must consider before implementing or continuing to use an existing criminal background check policy.
If you have any questions regarding the EEOC’s Guidance or drafting/revising a background check policy, please contact:
James J. Boutrous II248.220.1355
Nicole J. Gray 216.348.5418
Labor and Employment Practice
We have an impressive team of labor and employment attorneys who specialize in representing management in all aspects of labor and employment law at both the state and federal level. They have significant expertise in counseling clients on labor, employment and human resources issues and representing employers in state and federal courts and administrative agencies in all aspects of labor and employment-related litigation.
For more important legal and business information relating to employers, please visit our blog, the Employer Legal Advocate.