Executive Summary: The Equal Employment Opportunity Commission (EEOC) has issued an updated guidance on the use of an individual's criminal history in making employment decisions. The guidance was issued April 25, 2012 and is available at: http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm.
According to the guidance, the use of an individual's criminal history in making employment decisions may, in some circumstances, violate Title VII. The guidance notes that in the last twenty years, there has been a significant increase in the number of Americans who have had contact with the criminal justice system. Additionally, the EEOC notes that arrest and incarceration rates are particularly high for African American and Hispanic men when compared to the general population. According to the guidance, such higher rates of arrest and incarceration support a finding that criminal records exclusions have a disparate impact based on race and national origin.
Arrest vs. Conviction Records: The guidance distinguishes between arrest and conviction records. The EEOC takes the position that an arrest does not indicate that criminal conduct has occurred and an exclusion from employment based on an arrest is not job-related and consistent with business necessity. An employer may, however, make an employment decision based on the conduct underlying the arrest if that conduct makes the individual unfit for the position in question. A conviction record generally provides sufficient evidence that the individual has engaged in the conduct in question. According to the EEOC, in some circumstances there may be reasons for an employer not to rely on conviction record alone in making employment decisions.
Discrimination Claims: Because having a criminal history is not a protected category under Title VII, an individual claiming that an employer's use of criminal history is discriminatory must show either "disparate treatment" – that the employer treated minorities with criminal histories less favorably than similarly situated non-minorities with comparable criminal histories – or disparate impact. An employer may be liable for disparate impact discrimination if an individual can show that an employer's facially neutral policy (such as excluding from employment all individuals with criminal convictions) disproportionately impacts a Title-VII protected group. In disparate impact claims, the employer may defend the policy or practice by showing that it is job-related for the position in question and consistent with business necessity. A Title VII plaintiff may, however, still prevail by demonstrating that there is a less discriminatory "alternative employment practice" that serves the employer's legitimate goals as effectively as the challenged practice but that the employer refused to adopt.
The employer may establish that a policy is job-related and consistent with business necessity if it validates the criminal conduct screen in accordance with the standards set forth in the Uniform Guidelines on Employee Selection Procedures (if data about criminal conduct as related to subsequent work performance is available and such validation is possible). Alternatively, the employer may be able to establish this defense by showing that it is using a targeted screen that considers at least:
- the nature of the crime,
- the time elapsed, and
- the nature of the job,
and then provides an opportunity for an individualized assessment for people excluded by the screen to determine whether the policy as applied is job-related and consistent with business necessity.
The EEOC takes the position that an across-the-board policy that excludes individuals from all employment opportunities because of any criminal conviction is not job-related and consistent with business necessity.
Compliance with Other Laws as a Defense: The guidance states that compliance with federal laws or regulations prohibiting individuals with certain criminal records from holding certain positions or engaging in certain occupations is a defense to a charge of discrimination. However, because state and local laws are preempted if they purport to require or permit an employer to take an action that would be unlawful under Title VII, if an employer's exclusionary policy or practice is not job-related and consistent with business necessity, the fact that it was adopted to comply with a state or local law or regulation does not shield the employer from Title VII liability.
Best Practices: The guidance provides examples of best practices for employers who are considering criminal record information when making employment decisions. The EEOC suggests eliminating policies or practices that exclude people from employment based on any criminal record. Employers should also train managers, hiring officials, and decisionmakers about Title VII and its prohibition on employment discrimination.
Additionally, when developing a policy for screening applicants and employees for criminal conduct, employers should:
- Ensure the policy is narrowly tailored;
- Identify essential job requirements and the actual circumstances under which the jobs are performed;
- Determine the specific criminal offenses, considering all available evidence, which may demonstrate unfitness for performing such jobs;
- Determine the duration of exclusions for criminal conduct based on all available evidence and include an individualized assessment;
- Record the justification for the policy and procedures;
- Note and keep a record of consultations and research considered in crafting the policy and procedures; and
- Train managers, hiring officials and decisionmakers on how to implement the policy and procedures consistently with Title VII.
Employers should also limit questions about criminal records to those records for which exclusion would be job-related for the position in question and consistent with business necessity. Finally, employers should ensure that all information about applicants' and employees' criminal records is kept confidential and used only for the purpose for which it was intended.
If you have any questions regarding the new guidance or other labor or employment related issues, please contact the Ford & Harrison attorney with whom you usually work.