Earlier this year, the EEOC issued new Enforcement Guidance warning private sector employers that they could face litigation unless they significantly restrict the use of arrest and conviction records in hiring, promotion, and other employment decisions. The Guidance is rooted in the EEOC’s long-held view that an employer’s use of criminal history information has a tendency to disproportionately and adversely affect minority groups and, thus, violate Title VII. The Guidance sets out the EEOC’s enforcement position and recommended best practices regarding criminal background check information. Employers who do not adopt these practices may find themselves defending discrimination complaints or lawsuits.
It is important to recognize that the Guidance is not a statute or a regulation, and, therefore, does not carry the force of law. In a contested case, the EEOC would still be required to prove that an employer’s policy disqualifying individuals with criminal convictions in fact violates Title VII. Nevertheless, most employers would prefer to avoid confrontation with the EEOC altogether. Thus, it is important to understand what policies and practices the EEOC considers unacceptable.
The Guidance, which briefly touches on disparate treatment claims, focuses primarily on disparate impact claims. Title VII of the Civil Rights Act of 1964 prohibits “disparate impact” discrimination, which occurs when an employer’s seemingly neutral policy has a disproportionately negative impact on members of a protected class. As applied to criminal history information, the EEOC’s view is that since certain racial groups, primarily African Americans and Hispanics, are arrested and convicted in the United States in numbers disproportionately higher than other races, employer policies or practices permitting or requiring adverse employment action due to employees’ or applicants’ criminal records, absent further analysis, are discriminatory and therefore illegal.
So what is a private sector employer to do, assuming it does not want to become an enforcement test case for the EEOC?
First, the employer must show that a hiring, promotion, or other employment exclusion based on criminal history information is “job-related and consistent with business necessity.” For example, blanket no-hire policies, under which an employer refuses to hire any applicant with a criminal record, are viewed as generally unlawful. For most employers, the Guidance presents only one feasible option, namely, targeted exclusions tailored to the specific job in question and based on the so-called “Green factors” (derived from a 1975 case called Green v. Missouri Pacific Railroad):
- The nature and gravity of the offense or conduct;
- The time that has passed since the offense or conduct or completion of the sentence; and
- The nature of the job held or sought.
In other words, according to the EEOC, employers should adopt a “targeted screen” by establishing a policy that defines and limits the use of convictions based on the type of job involved. For instance, an employer should specify or give examples of the types of potentially disqualifying crimes, consider limiting conviction inquiries to a specified length of time from the conviction (or release from prison) to the date of application, and even consider if conviction records will only be requested in connection with certain types of jobs that carry risk. Also, employers need to be aware some states, such as Washington, already have restrictions on what information an employer can request regarding arrests and convictions or how far back the employer can go in time.
Second, the EEOC does not consider a “targeted screen” to be enough. If an individual has a conviction that is potentially disqualifying, the EEOC recommends that an employer also conduct an individualized assessment of the situation instead of automatically disqualifying the individual. The EEOC states that individualized assessments “can help employers avoid Title VII liability.” The individualized assessment should include notice to the applicant (in case there is an error in the record or mistaken identity), an opportunity to explain the circumstances of the crime and conviction, an assessment of the facts by the employer as they apply to the particular job and the exposure to danger or risk, the age at time of conviction, the number of offenses, post-conviction conduct, employment or character references, and other factors suggested in the Guidance.
In general, employers should avoid use of arrest records unless they are prepared to review and evaluate the conduct that led to the arrest. Moreover, some states, such as California, prohibit the use of arrest records in employment decisions. Even in states where there is no prohibition on inquiring about arrests, employers should not use records of arrests that do not result in a conviction, unless charges remain pending and the crime, if proven, would disqualify a person from a particular position based on job-relatedness or business necessity.
From the EEOC’s perspective, a good practice to minimize risk is to eliminate any questions about criminal history on the application form and save such inquiries for later in the process—during interviews, for example. In fact, a number of cities and counties around the country, as well as six states, have “banned the box” (removed any question about arrest or convictions) on applications for public sector employment. While it is still lawful to include it (with appropriate disclaimers), private sector employers can reduce the likelihood of charges or litigation by choosing to do the same. After all, many individuals with criminal backgrounds may be screened out during early stages of the application process by focusing on comparative job-related skills, employment history, and education or training. Turning down an applicant based on such legitimate, nondiscriminatory, and job-related criteria does not run afoul of the Guidance.
Employers who decide to include questions regarding criminal history on the application form should include a statement that a criminal conviction is not an automatic bar to employment and the applicant should provide information regarding the date and circumstances involved in the criminal conviction.
Employers should continue to abide by any federal, state, or local law that requires specified criminal background checks or exclusions of individuals with specific criminal histories from employment. The EEOC concedes that Title VII does not preempt federally imposed restrictions based on an individual’s criminal record, such as those laws that prohibit federally chartered banks from employing certain individuals with convictions. Although EEOC states that Title VII preempts state or local laws, an employer regulated by state or local laws prohibiting the employment of individuals with convictions in certain jobs or occupations should still follow the laws regulating their business.