On April 25, 2012, the Equal Employment Opportunity Commission (EEOC) approved updated “Enforcement Guidance” on employer use of arrest and conviction records in hiring and other in employment decisions. By a 4-1 vote, the EEOC held that, while Title VII does not bar use of criminal background checks, employers may violate the law if they intentionally discriminate among individuals with similar criminal histories, or if their policies have a disproportionate adverse impact based on race, national origin or other protected category and they cannot demonstrate “business necessity” for any exclusion.
This new guidance rejects any “blanket exclusion” on the hiring of individuals with a criminal record, and even recommends that employers not ask about convictions on job applications. However, the Commission does not ban the use of criminal histories in making hiring decisions. Where employers apply criminal record exclusions uniformly, the EEOC maintains that the exclusions may still operate disproportionately and unjustifiably to exclude people of a particular race or national origin (“disparate impact discrimination”). Absent an employer with such disproportionate exclusions establishing that an exclusion is “job related and consistent with business necessity” for the position in question, the exclusion is unlawful under Title VII.
In analyzing whether an employer has excluded job applicants in a manner that is job-related and consistent with business necessity, the EEOC stated that it will consider whether the employer has developed a “targeted screen” that considers at least the nature of the crime, the time elapsed since the crime and/or the completion of the sentence, and the nature of the job held or sought. An example of a “targeted screen:” No felonies involving drugs or violence in the past 10 years. If an applicant has been “screened out” based upon a “target” or “rule” incorporating these factors, the Commission indicates that the employer should still engage in an “individualized assessment” where the applicant would be afforded an opportunity to demonstrate that the exclusion should not be applied because of his particular circumstances. According to the EEOC, an “individualized assessment” should consider the facts or circumstances surrounding the offense or conduct; the number of offenses for which the individual was convicted; the age of the person at the time of the conviction or release from prison; the length and consistency of employment history before and after the offense; rehabilitation efforts (e.g., education and training); and employment or character references going to fitness for a particular position.
Significantly, the EEOC has indicated that its guidance would pre-empt state or local laws that “conflict” with this guidance. Thus, if an employer follows a state or local law requiring it not to hire an applicant with a criminal conviction or a particular job classification, the employer may still violate Title VII, according to the EEOC.
Although this guidance is not binding on employers, the EEOC has indicated that it intends to follow this guidance in the future as to those administrative charges and lawsuits in which the Commission is involved. Thus employers are well advised now to consider whether their use of criminal histories in making hiring decisions has an adverse impact on persons in protected classifications. If so, an employer must review whether criminal record exclusion policies or practices are job-related and consistent with business necessity. Again, the EEOC encourages “individualized assessment” to avoid Title VII liability. Ultimately reviewing courts in various jurisdictions enforcing Title VII will determine if this guidance constitutes a valid interpretation of Title VII’s dictates or is overreaching, and thus unenforceable.