On April 25, 2012, the EEOC issued a new “Enforcement Guidance” on the use of arrest and conviction records in employment decisions. Although the Enforcement Guidance largely consolidated a variety of prior EEOC analyses on the subject, it also went further and adopted an even more zealous cautionary instruction regarding the use of criminal records.
The stated, and historical basis, for opposing the use of arrest and conviction records is the concern that it has the effect of discriminating against minorities in employment decisions. Keep in mind, Title VII of the Civil Rights Act of 1964 contains no express prohibition against the use of criminal records in making employment decisions. Similarly, the Minnesota Human Rights Act contains no such prohibition for private employers. Wisconsin, on the other hand, has legislation specifically limiting the use of arrest and conviction records.
Since the federal government has no legislation that expressly prohibits the use of criminal background information, the EEOC has taken it upon itself to discourage employers from using such information and cautioning that the use of an individual’s criminal history in making employment decisions “may, in some instances, violate the prohibition against employment discrimination under Title VII of the Civil Rights Act of 1964.” Enforcement Guidance, Summary.
While the Enforcement Guidance stops short of attempting to ban the use of criminal background checks, it instead insists that employers can only use them if they are able to establish that the use of conviction records is “job related and consistent with business necessity.” This, according to the EEOC with a reference to a case decided by the 8th Circuit Court of Appeals, would mean using a screening test that considers 1) the nature of the crime, 2) the elapsed time since the conviction and 3) the nature of the job involved. Enforcement Guidance citing Green v. Missouri Pacific Railroad, 549 F2d 1158 (8th Cir. 1977) (hereinafter, “the Green factors”). The EEOC then indicates that the employer’s policy should provide an opportunity for an individualized assessment for those people identified by the Green factor screen to determine if the policy as applied is job related and consistent with business necessity.
The EEOC also states that an employer’s “best practice” would be to “not ask about convictions on job applications.” Enforcement Guidance. This recommended “best practice” would remove one of the few effective background screening devices currently in the employer’s arsenal. Securing employment references has already become hugely problematic because of the fear of defamation liability and privacy violations. Few employers will provide any information about a past employee to a prospective or new employer. One of the few ways for an employer to apply a measuring stick to an applicant’s past conduct is to inquire about conviction history.
The “individualized assessment” encouraged by the EEOC consists of notice to the applicant that he has been screened out because of a criminal conviction, after which the applicant is given an opportunity to demonstrate that the exclusion should not be applied to his particular circumstances and then consideration is to be given by the employer as to whether the additional information provided by the applicant warrants an exception to the exclusion by showing that the policy as applied is not job related and consistent with business necessity. In many instances, this would be a pointless exercise. For example, why would a hospital need to perform an individualized assessment for an applicant with a criminal conviction for drug trafficking? Why should an elementary school conduct an individualized assessment for a convicted pedophile seeking school employment?
The unfortunate reality is that employers that dispense with the “individualized assessment” now so strongly encouraged by the EEOC may run the risk of drawing a discrimination charge based on national statistics which the EEOC believes will support a disparate impact discrimination claim. The EEOC will not attempt to determine whether a particular employer’s statistics reflect a discriminatory impact, but will instead rely upon data potentially having little to do with the particular employer’s practices.
The Green Factors.
If an employer chooses follow the Guidance and conduct the individualized assessment using the Green factors, the EEOC suggests they be considered in the following fashion:
Nature and Gravity of the Offense. The EEOC suggests that the employer consider the harm caused by the crime, the legal elements of the crime (whether the crime involves deception, threat or intimidation) and the classification of the offense as a misdemeanor or a felony.
Elapsed Time. The EEOC did not identify a specific time for any type of offense after which it should be excluded from a decision to not hire an applicant. It did, however, strongly suggest that the use of a permanent exclusion based on past offenses would be contrary to law. While it would be prudent to therefore avoid having a written policy which indicates that any exclusion is permanent, it is inconceivable that some offenses, e.g., pedophilia for daycare workers, could not be legitimately used as a permanent exclusion.
Nature of the Job Sought. Under this factor, the EEOC encourages the employer to consider 1) the nature of the duties, such as data entry, which might involve security issues, or tasks like lifting boxes which pose no such threat, 2) identification of the job’s essential functions, 3) the circumstances under which the job is performed, e.g., the level of supervision and oversight, 4) the amount of interaction with co-workers or vulnerable individuals, and 5) the environment in which the duties are performed such as the outdoors, in a private home or in a secluded part of a warehouse.
Despite the zealousness of the EEOC, there are some industries and forms of employment as to which their Guidance and Title VII does not pre-empt the need for criminal background checks. Those positions include childcare workers in federal agencies or facilities, bank employees and law enforcement positions. The EEOC, however, opposes the rights of employers to otherwise conduct criminal background checks. It is unclear why the federal government has allowed the banking industry and federal childcare operations to trump the rights of minorities with respect to criminal records, but other industries and nongovernmental providers do not enjoy the same freedom.
Employers should recognize that the EEOC does not have the power to legislate. Its Enforcement Guidance is not a statement of the law, and violating the Guidance does not also violate the law. Only a court can ultimately determine whether a law has been violated, and while a court may consider and give weight to the EEOC Guidance in making those determinations, it is also free to conclude that the EEOC has exceeded the parameters of the governing statute, i.e., Title VII, and dismiss a claim brought by the EEOC or a private plaintiff. Nonetheless, employers would do well to consider the Enforcement Guidance prior to using criminal histories in making employment decisions as the expense of dealing with an EEOC charge is by no means insignificant.