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EEOC Issued Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions

April 27, 2012

The National Association of Professional Background Screeners (NAPBS) has issued a statement regarding the new Guidance issued by the EEOC.  “NAPBS supports and promotes criminal background checks as an appropriate and necessary tool to help employers make informed hiring decisions and ensure the safety and well-being of their staff and customers.

Employers use background checks to protect their business interests, ensure the reliability of their workforce and to protect current employees, customers, members of the public, brand name and trade secret information; criminal history checks are a part of the overall screening of a potential employee.

 The EEOC guidance is not binding on courts and carries no “official” legal weight. However, courts have relied on agency policy statements and the EEOC guidance in particular. 

 EEOC spokeswomen Christine Nazer provides this statement in response to the new Guidance and employers use of criminal history searches:   “The EEOC simply seeks to ensure that their use are undertaken carefully to ensure that employment opportunities are not denied  inappropriately.”

 And, according to Commissioner Lipnic’s opening statement at the public meeting, there may be instances “when particular criminal history will be so manifestly relevant to the position in question that an employer can lawfully screen out an applicant without further inquiry. A day care center need not ask an applicant to ‘explain’ a conviction of violence against a child, nor does a pharmacy have to bend over backward to justify why it excludes convicted drug deals from working in the pharmacy lab.”

Rather than establishing all new rules the Guidance provides more detail on the current standards.  The Guidance is aimed at employers and includes Best Practices for employers to consider when making employment decisions involving criminal records. 

The Guidance is the first attempt since 1990 to update the commission’s policy on criminal background checks.  Current Standards already require employers to consider: 

1: the nature and gravity of the offense

2: the time that has passed since the arrest and conviction

3: the nature of the position sought

The EEOC will be enforcing Title VII with this Guidance in mind.  

The Guidance discusses disparate treatment and disparate impact analysis under Title VII.  EEOC Guidance assumes there is a disparate impact unless employer can show evidence that there is not.  The Guidance states it will not be enough to show a diverse workforce. 

Employers will need to show job relatedness and consistent business necessity through either

  1. Validation on the use of specific criminal history by having a study or expert testimony on data analysis about criminal conduct as related to work performance;  or
  2. Develop a targeted screen using the following:

      a.   The nature and gravity of the offense – an employer should evaluate the harm caused, the legal elements of a crime and the classification of the crime. 

       b. The time that has passed since the arrest and conviction – an employer should look at the facts and circumstances of the  arrest  and evaluate studies of recidivism and

       c. The nature of the position sought – an employer should examine the specific duties, function and environment of the job. 

Individualized Assessments

The EEOC recommends that “Individualized Assessments” can help employers avoid Title VII liability.  According to the Guidance:  Individualized assessment means that an employer informs the individual that he may be excluded because of past criminal conduct; provides an opportunity to the individual to demonstrate that the exclusion does not properly apply to him; and considers whether the individual’s additional information shows that the policy as applied is not job related and consistent with business necessity. 

Using this method would also require an individualized assessment to determine if the record was job related.  If you are going to take adverse action you should take these 7 points into consideration. 

  • Facts or circumstances surround the offense or conduct;
  • Number of offenses for which the individual was convicted;
  • Age at the time of conviction, or release from prison;
  • Evidence that the individual performed the same type of work, post conviction, without any known incidents of criminal conduct;
  • Length and consistency of employment before and after offense;
  • Rehabilitation efforts, and
  • Whether the individual is bonded under a federal, state, or local bonding program.

The Guidance discusses what an employer can ask an individual about criminal history. The Guidance recommends that employers not ask about convictions on applications and when inquires are made they should be limited to those questions that are job related and consistent with business necessity.

The guidance discusses the differences between arrest and conviction records.  The Guidance makes clear that use of arrest records is not job related and consistent with business necessity. The Guidance, however, states that an employer may make a decision on the underlying conduct if the conduct makes the individual unfit for a position.

The Guidance discusses Compliance with Other Laws.  Compliance with other federal laws and/or regulations that conflict with Title VII is a defense to a charge of discrimination under Title VII.

Compliance with state and local laws is preempted by Title VII if they “purport to require or permit the doing of any act which would be an unlawful employment practice under Title VII”.  If an employer’s policy is not job related and consistent with business necessity, the fact that it was adopted to comply with a state or local law will not shield employers from Title VII liability.

Best Practices Include: 

•Eliminate policies or practices that exclude people from employment based on any criminal record; •Train managers, hiring officials, and decision-makers about Title VII and its prohibition on employment discrimination;

•Develop a narrowly tailored written policy and procedures for screening for criminal records;

•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;

•Identify the criminal offenses based on all available evidence;

•Determine the duration of exclusions for criminal conduct based on all available evidence;

•Record the justification for the policy and procedures;

•Note and keep a record of consultations and research considered in crafting the policy and procedures;

•Train managers, hiring officials, and decision-makers on how to implement the policy and procedures consistent with Title VII

•When asking questions about criminal records, limit inquiries to records for which exclusion would be job related for the position in question and consistent with business necessity; and

•Keep information about the criminal records of applicants and employees confidential (only use it for the purposes for which it was intended).

~~Johnna Leeds is our guest blogger this week. Johnna is the Compliance Manager for Data Facts, Inc, a 23 year old Memphis based company that is a leading provider of pre-employment screening solutions. Check our our website for a complete explanation of our services.

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