The United States Equal Employment Opportunity Commission (the "EEOC") recently issued an updated "Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964" (the "Guidance"). The Guidance builds on the EEOC's long-held position that, although Title VII does not protect individuals with criminal records as a class, an employer's reliance on arrest and conviction records in deciding whether to hire or retain employees may result in illegal discrimination based on race and national origin.
The Guidance provides a number of recommendations and best practices for employers to follow when using criminal background information to make employment decisions, including the following six:
- Reconsider Job Application Questions: Although it stops short of "banning the box," as many states and municipalities have done, the Guidance strongly discourages employers from asking about criminal convictions on job applications, stating that it is "best practice" not to do so. If an employer does ask about criminal convictions, it should ask only about convictions that are related to the job in question and consistent with business necessity.
- Employers Cannot Deny Employment Based on Arrest Records Alone: According to the EEOC, employers may not exclude an applicant based on an arrest record alone. The EEOC maintains that, unlike a conviction, an arrest does not establish that the alleged conduct actually occurred. The EEOC concedes, however, that an employer may make an employment decision based on its evaluation of the conduct underlying the arrest, if the conduct is relevant for employment purposes. For example, the Guidance recognizes that a school teacher arrested for inappropriately touching students may not be qualified for his or her employment and may be subject to termination if an independent investigation conducted by the school supports the discharge decision. According to the EEOC, such a termination would not violate Title VII because the decision is based on the underlying job-related conduct, not the arrest.
- Avoid Bright-Line Policies: The EEOC takes the position that a blanket policy denying employment to all applicants with criminal conviction records violates Title VII. Employers should instead utilize a targeted screening process that takes into consideration the nature of the crime, the time elapsed since the conviction, and the nature of the job held or sought. The EEOC further recommends that employers study recidivism data to determine whether a particular conviction should be considered, rather than rely only on generalized concerns. By way of example, the Guidance states that a 15-year-old misdemeanor conviction for misrepresenting income on a loan application likely would not be sufficient grounds to disqualify an applicant from a customer service job at a bank, unless the employer can demonstrate that there is an increased likelihood for that person, who has been crime-free for more than 10 years, to commit a financial crime.
- Conduct Individualized Assessments: The most burdensome provision in the Guidance is the EEOC's suggestion that employers are required to conduct an "individualized assessment" before disqualifying an applicant based on criminal history. According to the EEOC, an employer should (a) inform the individual of his/her exclusion based on a criminal record, (b) provide the individual an opportunity to demonstrate that he/she should not be excluded, and (c) consider whether the individual assessment shows that the exclusion policy should not be applied. The Guidance lists a number of factors that employers should consider as part of an individualized assessment, including the facts and circumstances surrounding the criminal offense, employment or character references, and any evidence that the individual performed the same type of work post-conviction without incident.
- Compliance With State Law Is No Defense: An employer who screens out candidates with criminal records to comply with a federal law has a legitimate defense to a charge of discrimination. Compliance with state or local law, however, does not afford the same defense according to the Guidance, unless the employer can show that the screening policy is job-related and consistent with business necessity. It is conceivable that some employers may find themselves forced to decide whether to comply with state or local law or to face potential Title VII liability.
- Keep It Confidential: Employers must take precautions to ensure that any criminal information obtained about applicants or employees is kept confidential, and must provide training to managers and decision makers regarding the appropriate use of criminal background records.
Although the Guidance is not legally binding, and it remains to be seen whether courts will even consider it in ruling on Title VII cases, the EEOC certainly will be relying on it to enforce Title VII. Accordingly, in view of the EEOC's stated position with respect to the use of arrest and criminal conviction records for employment purposes, employers would be wise to review their current practices concerning background checks, consider whether changes are warranted, and take extreme care before denying employment to an applicant based on an arrest or a criminal conviction record.