The recent enforcement guidance issued by the Equal Employment Opportunity Commission (EEOC) on the use of arrest and conviction records brings a sleeper issue to the forefront and underscores the EEOC’s continuing focus on employer recruiting and hiring practices. The guidance, entitled Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 (Guidance) provides both a legal and a practical framework from the EEOC’s perspective for addressing employer use of criminal background information and supersedes previous EEOC pronouncements on the subject. While the Guidance is simply a guidance and does not carry the force of law, it does provide insight into the agency’s approach to the topic and prompts the savvy employer to take a closer look at its use of arrest and conviction records as a screening tool.

Implications for Employers Generally.

The EEOC indicates that the Guidance was prompted in part by recognition of the significant increase over the last 20 years in the number of Americans coming in contact with the criminal justice system, and recognition that arrest and incarceration rates for African Americans and Hispanic Americans are particularly high in relation to the general population. The EEOC also cites a 2010 survey conducted by the Society for Human Resources Management indicating that 73% of the responding employers reported having conducted criminal background checks on job applicants.

In general terms, under a disparate treatment theory of discrimination, an unsuccessful applicant for a position would need to show, among other matters, that he or she was treated differently and less favorably than some other applicant not in the same protected class. This might be shown, for instance, where the employer excluded a Hispanic applicant based on a particular conviction or arrest record but hired a Caucasian applicant who had a similar conviction or arrest record. In a discrimination challenge based on a disparate impact theory, the unsuccessful applicants typically must show that the employer’s screening practice or policy, while neutral on its face, has a statistically significant disparate impact on one or more protected classes. An example might arise where an employer has a policy of excluding applicants who have criminal convictions of any kind other than traffic violations, if this policy has a statistically significant adverse impact on particular protected classes of individuals such as African American or Hispanic individuals.

The EEOC provides a practical map of sorts to employers wishing to avoid a tangle with the EEOC. As an initial matter, the Guidance indicates that an arrest record standing alone should not be used to deny an employment opportunity; however, the employer may make an employment decision based on the conduct underlying the arrest if such conduct is job related. The EEOC’s map is formulated in particular based on an analysis of disparate impact precedent, but it may be of use in determining employer best practices from a range of perspectives. The Guidance emphasizes that the screening process should be narrowly crafted to identify criminal conduct that is specifically job related, i.e., has a demonstrable connection to the duties and responsibilities of the position for which the individual is applying.

The Guidance indicates that employers may, as one option, have their criminal history screening practices formally validated in accordance with EEOC Uniform Guidelines on Employee Selection Procedures. Unfortunately, formal validation may be an expensive and time-consuming process. Alternatively, the Guidance suggests that the employer develop a targeted screening process that: (1) takes into consideration at least the nature of the crime, the time that has elapsed since the crime, and the nature of the job for which the individual is applying; and (2) provides for an individualized assessment for those individuals potentially excluded by the screening process.

The individualized assessment: (1) necessitates that the individual be informed in some way that he/she may be excluded because of the criminal history; and (2) allows the individual the opportunity to provide information that the exclusion should not apply to him or her under the circumstances. The Guidance recognizes that an individual assessment may not be appropriate or necessary in all circumstances.

Apart from concerns under Title VII and other federal human rights laws, employer use of arrest and conviction records raises a host of other legal issues. For example, if an employer is using an outside agency or individual to prepare the criminal history information or report, the employer must comply with the notice and other requirements of the federal Fair Credit Reporting Act and any state law equivalents. As a further example, state human rights laws may further restrict or prohibit consideration of arrest and conviction records except in limited circumstances.

FDIC Requirements.

The Guidance specifically recognizes that certain employers have federally-mandated restrictions with regard to hiring practices. One example is the prohibition under the Federal Deposit Insurance Act (FDIA) against the hire into a position with an insured depository institution, absent the prior written consent of the Federal Deposit Insurance Corporation (FDIC), of an individual convicted of a criminal offense involving dishonesty, breach of trust, or money laundering, or of an individual who has agreed to enter into a pretrial diversion or similar program in connection with prosecution for such an offense.

The EEOC Guidance does not affect the bank’s obligations under FDIA. The Guidance comes into play in two respects however. First, FDIA allows a bank to apply for FDIC consent to the hire. If the bank chooses to apply for a waiver for one individual and does not do so for another individual in a similar circumstance, the bank could potentially face a discrimination challenge. For instance, if a bank chooses to file an application on behalf of an individual who is Caucasian and declines to do so for an individual in a similar circumstance who is African American or Hispanic, there is the potential for a discrimination claim. Second, FDIA also allows an individual to apply for a waiver. According to the Guidance, if FDIC consent is obtained, the bank should consider the various factors noted in the Guidance as described above in this article in its determination of whether to hire the individual. For example, the bank from the EEOC’s perspective should engage in the individualized assessment discussed above, and consider such factors as the nature and circumstances of the crime, the length of time since the crime was committed, and evidence of rehabilitation.

The EEOC indicates that it intends to coordinate with other federal departments and agencies to maximize regulatory consistency with respect to the use of criminal background information in employment decisions.

Takeaway:

New EEOC Guidance prompts a closer look at the use of arrest and conviction records as a screening tool in employment decisions.