On April 25, 2012, the EEOC published updated enforcement guidance on the use of arrest and conviction records when making employment decisions. Although the EEOC’s guidance does not prohibit employers from considering criminal records as part of the decision-making process, it does set forth the EEOC’s recommended best practices for employers to follow when creating a background screening process that includes a criminal records check. In addition, the EEOC’s guidance emphasizes that an employer’s criminal record screening process should be “job related and consistent with business necessity” and states that employers should conduct an individualized assessment of each applicant or employee’s circumstances before disqualifying the individual for employment based on past criminal conduct.

With regard to the EEOC’s best practices for creating a criminal records screening policy, the EEOC says that employers must identify the essential functions of a job, as well as the “actual circumstances under which the jobs are performed.” Employers should then determine which specific criminal offenses may demonstrate unfitness for performing the job and determine how long such an offense should disqualify an individual for the particular job. Additionally, the EEOC recommends employers document the justification for any criminal records screening policy or procedure and advises employers to provide training to their managers and other hiring personnel. Finally, the EEOC recommends any information regarding an individual’s criminal record be maintained in a confidential manner.

With respect to the job-relatedness aspect of a criminal record screening process, the EEOC’s guidance identifies two situations in which an employer’s screening process or policy will satisfy the “business necessity” defense. First, an employer may establish the business necessity of such a policy by “validating” the criminal background screen for the position at issue using one of the approaches set forth in the Uniform Guidelines on Employee Selection Procedures.  Alternatively, the employer may use a “targeted” screening process that takes into consideration three factors: (1) the nature and gravity of the offense; (2) the amount of time that has passed since the offense and/or completion of the individual’s sentence; and (3) the nature of the job held or applied for. In describing how these three factors should be used, the EEOC advises employers to make an individualized assessment and evaluate the following specific factors before disqualifying an individual from employment:  

  • The facts or circumstances surrounding the offense or criminal conduct
  • The number of offenses for which the individual was convicted
  • The individual’s age at the time of conviction or release
  • Evidence that the individual has performed the same type of work post-conviction without problems
  • The length and consistency of the individual’s employment history before the offense
  • Rehabilitation efforts, such as education or training
  • Employment or character references
  • Whether the individual is bonded under a federal, state, or local bonding program

According to the EEOC, if the employer decides to disqualify an individual from employment based on past criminal conduct, the employer should inform the individual of the reason for the employer’s decision, provide an opportunity for the individual to explain why he or she should not be disqualified based on the past criminal conduct, and consider whether the employer’s individualized assessment suggests that disqualification is not warranted. However, the guidance indicates that an employer may make its employment decision without information regarding the above factors if the employer requests such information from the applicant or employee and the individual fails to provide the information.

Notably, the EEOC’s guidance and its related publications remind employers that, although arrest or conviction record discrimination is not prohibited under Title VII, the EEOC continues to take the position that criminal record screening may disproportionately affect individuals of certain races or national origins. Thus, according to the EEOC, an employer can be liable for race or national origin discrimination under a “disparate impact” theory unless it demonstrates the job-relatedness of its criminal record screening process. Therefore, it is now more important than ever that employers review their background screening process to ensure that any criminal records screening is job-related, as the EEOC will likely be looking very hard at this issue, and courts may follow along.