The EEOC conducted a public meeting this past week and voted 4-1 to approve its proposed guidance which deals with the use by employers of arrest and conviction records in background checks used for hiring. We reported last week that EEOC Commissioner Lipnic had stated that this was a key upcoming agenda item for the EEOC. Commissioner Constance S. Barker was the lone dissenter.
The guidance is not all that easy to understand, much less comply with, so we will give a capsule summary and until we can digest it further and until there are some court cases which interpret it, we will sheepishly provide you with links to the appropriate EEOC web sites and let them help you figure it out.
The EEOC press release referred those concerned to its Enforcement Guidance and a Question-and-Answer (Q&A) document, These web sites also set forth the EEOC’s suggested “best practices.” The materials used at the public meetings, including testimony and transcripts, are available at http://eeoc.gov/eeoc/meetings/index.cfm.
Title VII prohibits discrimination in employment based on protected classes such as race, color, national origin, religion, or sex. There is nothing in Title VII that deals with people with a criminal history being in a protected class. That is, it does not bar employers from asking job applicants or employees about arrests, convictions or incarceration.
However, we know that discrimination comes in two flavors – it may be intentional, or it may involve an employment practice or policy which may have a “disparate impact” upon members of a protected class. In the case of criminal background checks, the EEOC is sensitive to the “disparate impact” which criminal background checks (as well as, for example, credit screening), may have on protected classes, and therefore may violate Title VII. This is not a new issues; the EEOC has been wrestling with this issue since at least as far back as 1987 Basically, the approved guidance prohibits the use of criminal record information unless it is “job related” and “consistent with a business necessity defense.” What does this mean? And how will this impact employment practices? And will this put an undue burden on employers?
EEOC Chairwoman Jacqueline A. Berrien has stated that “The new guidance clarifies and updates the EEOC’s longstanding policy concerning the use of arrest and conviction records in employment, which will assist job seekers, employees, employers, and many other agency stakeholders.”
But dissenting Commissioner Barker claims that the impact on employers will be grave: "If I were a business owner, I would never again conduct another criminal background check on a potential employee unless I was required to under federal law. Why should they? The guidance tells them they are taking a tremendous risk if they do." The U.S. Chamber of Commerce agrees.