On April 25, 2012, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued a revised policy, titled, Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, which provides insight to employers on instances where use of an individual’s arrest or conviction records in employment decisions may expose employers to liability for employment discrimination. At a time when more than 90% of employers conduct criminal background checks on all or some of their job candidates, employers need to be aware of how consideration of such information may violate Title VII of the Civil Rights Act of 1964 (“Title VII”), which prohibits employment discrimination based on, among other things, race and national origin. The positions taken by the EEOC are largely the same as they have been for the past thirty years, but are now explained in detail to provide clarity on this important issue.

Disparate Treatment of Job Applicants Prohibited

The new guidance makes clear that employers are prohibited from treating job applicants with the same criminal records differently because of their race, color, religion, sex, or national origin. As an example, the EEOC describes a situation where an employer rejects an African-American male applicant who pled guilty to charges of possessing and distributing marijuana as a high school student on the basis that the company cannot afford to refer “these drug dealer types,” but refers a Caucasian applicant with the same conviction for a second interview reasoning that the applicant was young at the time of the offense. Because employment decisions based on racial or ethnic stereotypes about criminality are also prohibited under Title VII, a decision to reject an applicant based on such stereotypes as opposed to the applicant’s qualifications and suitability for a particular job is unlawful disparate treatment.

Blanket Exclusions May Give Rise To Disparate Impact Discrimination

Employers must also be wary of neutral policies or practices that exclude all applicants with certain criminal conduct from employment and have the effect of disproportionately screening out a Title VII-protected group. The new guidance references studies, which show that African-Americans and Hispanics are more likely to be arrested, convicted, or sentenced for drug offenses than Caucasians and are arrested and incarcerated at rates disproportionate to their numbers in the general population. Based on this information, the EEOC takes the position that “national data supports a finding that criminal record exclusions have a disparate impact based on race and national origin.” Therefore, an otherwise neutral exclusive policy or practice violates Title VII unless the employer demonstrates that the policy or practice is job related for the position in question and consistent with business necessity.

The new guidance explains that “[t]o establish that a criminal conduct exclusion that has a disparate impact is job related and consistent with business necessity under Title VII, the employer needs to show that the policy operates to effectively link specific criminal conduct, and its dangers, with the risks inherent in the duties of a particular position.” The EEOC suggests that employers can consistently meet this defense by (i) validating the criminal conduct exclusion using the Uniform Guidelines on Employee Selection Procedures or (ii) developing a targeted screen that takes into account the nature of the crime, the time elapsed, and the nature of the job and provides an opportunity for an individualized assessment for those identified by the screening process. While the EEOC recognizes that individualized assessments are not required in all circumstances under Title VII, it explains that use of a screen that does not include an individualized assessment is more likely to violate Title VII.

Arrest vs. Conviction Records

The new guidance also draws a distinction between the use of arrest and conviction records in making employment decisions. The EEOC discourages use of arrest records because the fact of an arrest does not establish that criminal conduct has occurred. Therefore, an exclusion based solely on an arrest record is not job related and consistent with business necessity. However, the EEOC does recognize that employers may consider conduct underlying an arrest when making an employment decision if such conduct makes the individual unfit for a particular job position.

A conviction record, on the other hand, will usually constitute sufficient evidence that a person engaged in particular conduct. However, employers must still keep in mind that in some instances there may be a reason for not relying on evidence of a conviction. Examples provided in the new guidance include: a conviction that was later expunged and a felony that was subsequently downgraded to a misdemeanor. The EEOC also recommends that employers not ask about convictions on job applications and if such inquiries are later made, they be limited to convictions for which exclusion would be job related for a particular position and consistent with business necessity.

Conflict With Federal Laws And Regulations Provides A Defense While State And Local Laws May Be Preempted

Another noteworthy point made by the EEOC is that while compliance with other federal laws and/or regulations that conflict with Title VII is a defense to a charge of discrimination under Title VII, state and local laws or regulations are preempted by Title VII if they “purport[] to require or permit the doing of any act which would be an unlawful employment practice.” Therefore, if an exclusionary policy or practice is not job related and consistent with business necessity, the fact that it was implemented and applied in order to comply with a state or local law or regulation will not operate as a defense to a Title VII claim.

Employer Action Items

Employers may continue to use criminal background checks to screen applicants and employees, but should be aware of the EEOC’s recommendations and should review their policies to ensure compliance. Among other things, employers should:

  • Eliminate policies or practices that exclude individuals with any criminal record from employment;
  • Train managers and human resources personnel about Title VII and when the use of arrest and conviction records can amount to employment discrimination;
  • Identify essential job requirements and determine specific offenses that may demonstrate unfitness for performing such jobs;
  • Limit inquiries about criminal history to records for which exclusion would be job related for the position in question and consistent with business necessity;
  • Keep information about current and prospective employees’ criminal records confidential.

The EEOC recently issued questions and answers about the Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII, which are available on the EEOC’s website at www.eeoc.gov.