Today, by a 4 to 1 vote of its Commissioners, the EEOC published its long-awaited and much-anticipated Enforcement Guidance on Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964. After the Commissioners' vote, the EEOC issued a press release about the Guidance along with a Q & A sheet on its new interpretation of Title VII.

If you are an employer, this is required reading for your hiring officers.

Overview Of The EEOC's Guidance

The EEOC's Guidance is aimed at employers (best practices for employers are included), as well as for use by the EEOC's staff. Undoubtedly, the concepts within it will also impact litigation issues in cases brought by the EEOC over use of criminal background checks in the hiring process, especially the EEOC's high profile litigation alleging systemic violations under Title VII against African-American and Hispanic applicants.

While not binding on employers, because the EEOC will be enforcing Title VII with this Guidance in mind, employers are well advised to consider adjusting their use of criminal history in accordance with it. This is especially true given that Commissioner Ishimaru stated in his remarks at the public meeting this morning that the EEOC was currently investigating hundreds of cases where employers illegally (allegedly, according to the EEOC) used criminal history in employment decisions. This comes on the heels of the EEOC's high profile $3.13 million settlement with Pepsi earlier this year in a  hiring discrimination case over the use of criminal background checks.

The Guidance starts from the premise that "national data support a finding that criminal record exclusions have a disparate impact" and  has roots in EEOC’s E-RACE (Eradicating Racism and Colorism in Employment) Initiative. The Guidance also cites studies finding that criminal records are often incomplete and inaccurate. Today’s release follows two previous releases by the EEOC on the subject in 1987 and 1990 and two public meetings. See November 20, 2008 Meeting on Employment Discrimination Faced by Individuals with Arrest and Conviction Records. Most recently, on July 26, 2011, the EEOC had a meeting again revisiting the use of arrest and conviction records in employment. 

What an Employer Can Ask

Taking a cue from state “ban the box” laws, the EEOC's Guidance recommends that employers not ask about convictions on applications. If and when they are made, inquiries about convictions should be limited to those which are job-related.   

Many employers currently ask about convictions in a blanket fashion or with minimal exclusions required by state laws. Per the Guidance, employers should review job applications and pre-employment inquiries based.

Arrest 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 does not specifically discuss how, if at all, pending records are different from arrests, except to state that a person can be placed on an unpaid administrative leave while an employer investigates the underlying facts. 

Factors To Consider When Evaluating Criminal History

It is no surprise that the EEOC reinforced its earlier position that bright line policies relating to the use of criminal history will be unlawful. The good news is that the Guidance does not contain any rule specifically limiting an employer’s ability to consider recent criminal records, or only a specified list of offenses - which many thought would be contained in the Guidance. Rather, the Guidance gives more insight into the factors that were originally set forth in the February 4, 1987 EEOC Policy Statement on the Issue of Conviction Records under Title VII, as well as adding some additional factors to be considered, specifically an individualized assessment. 

Based on the new Guidance, employers should consider the following factors when evaluating criminal history:

  1. the nature and gravity of the offense or offenses (which the EEOC explains may be evaluating the harm caused, the legal elements of the of a crime, and the classification, i.e, misdemeanor or felony);
  2. the time that has passed since the conviction and/or completion of the sentence (which the EEOC explains as looking at particular facts and circumstances and evaluating studies of recidivism); and
  3. the nature of the job held or sought (which the EEOC explains requires more than examining just the job title, but also specific duties, essential functions, and environment).

Individualized Assessment

The biggest area of change in the Guidance is the EEOC's recommendation that an “individualized assessment” can help employers avoid Title VII liability. Reading between the lines, although the Guidance states that “Title VII does not necessarily require individualized assessment in all circumstances,” employers may be challenged by the EEOC or private litigants if they do not do so. According to Commissioner Lipnic’s opening statement at the public meeting this morning, 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.”  

The EEOC sets forth a number of individual pieces of evidence that an employer should review when making an individualized determination including:

  • The facts or circumstances surrounding the offense or conduct;
  • The number of offenses for which the individual was convicted;
  • Older age at the time of conviction, or release from prison;
  • Evidence that the individual performed the same type of work, post conviction with the same or a different employer, with no known incidents of criminal conduct;
  • The length and consistency of employment history before and after the offense or conduct;
  • Rehabilitation efforts, e.g., education/training;
  • Employment or character references and any other information regarding fitness for the particular position; and
  • Whether the individual is bonded under a federal, state, or local bonding program.

This is perhaps the most concerning areas of the Guidance. Clearly, this list is extremely burdensome and will cause employers to spend time and resources in evaluating criminal history.  One saving grace is the Guidance does indicate if the applicant does not respond to the employer’s attempt to gather data, the employer can make the determination without the additional information.

Compliance With Other Laws

The EEOC's new Guidance acknowledges that compliance with “federal laws and regulations” disqualifying convicted individuals from certain occupations is a defense to charges of discrimination (e.g., convictions of theft and fraud that disqualify in the financial services industry).

In addition, the Guidance recognizes that denying employment based on failure to obtain a federal security clearance is not unlawful if the clearance is required for the job. However, the EEOC opines that compliance with state and local laws and regulations will not shield employers from Title VII liability due to Title VII pre-emption of state and local laws.

Best Practices.  Finally, the Guidance sets forth a few employer “best practices." They 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).