On April 25, 2012, the Equal Employment Opportunity Commission (EEOC) issued an enforcement guidance (Guidance) and corresponding Q&A that outline the EEOC's position regarding the use of criminal history information in employment decisions.
Although federal law does not explicitly prohibit discrimination on the basis of arrest and conviction records, courts and the EEOC have consistently determined that an employer's use of criminal history information can be discriminatory because of the disproportionate number of African-American and Hispanic men that are arrested for or convicted of crimes. In 1987 and 1990, the EEOC issued policy statements on the use of conviction and arrest records in employment decisions. The EEOC states that its position has not fundamentally changed since these policy statements, but the updated guidance reflects the EEOC's heightened interest in this issue in recent years.
The EEOC recognizes two types of discrimination claims that can arise from the use of conviction and arrest records in employment decisions:
- Disparate treatment – An employer can be liable for a violation of Title VII if it treats an individual belonging to a protected class differently than those outside of the class, such as requiring individuals in a certain protected class to disclose arrest and conviction information or treating certain criminal offenses as a disqualifier only for protected classes.
- Disparate impact – An employer can be liable for a violation of Title VII if it utilizes a policy or practice related to criminal history information that, although neutral on its face, disproportionately impacts a protected class, such as using conviction and arrest records that are not job-related or consistent with business necessity.
According to the Guidance, employers will meet the requirement that a policy or practice is job-related and consistent with business necessity in two circumstances:
- The employer uses the Uniform Guidelines on Employee Selection Procedures (a complex analysis of the validity of a selection method), or
- The employer develops a targeted screening policy using an individualized assessment.
The EEOC's recommendation for a targeted screening policy requires employers to evaluate criminal history information by considering three factors outlined in a 1977 Eighth Circuit case, Green v. Missouri Pacific Railroad: The nature and gravity of the offense or conduct; the time that has passed since the offense, conduct or completion of the sentence; and the nature of the job held or sought. The employer should also consider factors such as the number and nature of convictions, the individual's age at the time of the conviction, the individual's rehabilitation efforts and the individual's character or job references.
If after this analysis, the employer decides to exclude the employee or applicant, the employer should give the individual the opportunity to provide additional information or an explanation to establish that the exclusion should not be applied. If an employee or applicant does not provide additional information, the employer is free to make an employment decision based on the original information.
The EEOC considers the use of arrest records in employment decisions to be particularly problematic. According to the EEOC, an employer should not use arrest records alone as the basis for an employment decision because an arrest does not establish that certain conduct has occurred. An employer does not necessarily violate Title VII if it takes an adverse employment action based on the conduct that underlies an arrest and an employer may consider the conduct in light of the Green factors identified above. The Guidance does not explain how an employer will be able to determine whether the employee or applicant actually engaged in the conduct charged before the judicial process is concluded.
Compliance with State and Local Laws
According to the EEOC, an employer can be liable for disparate impact discrimination if the employer's refusal to hire was required by state or local law if the requirement imposed by the state or local law is not job-related or consistent with business necessity. The Guidance does not address the consequences to an employer of violating state or local law and offers no advice as to how individual employers can decide whether a particular state or local law meets the EEOC's standards.
Similar to the position that the EEOC has taken as to blanket policies under the Americans with Disabilities Act, the Guidance demonstrates that the EEOC is suspicious of employers with blanket policies that exclude individuals from employment based on any criminal history or that exclude employees or applicants with a particular criminal history from all jobs. A one-size-fits-all policy may be a red flag for the EEOC in investigating discrimination because it does not allow for the EEOC's recommended individual assessment.
The Guidance pulls employers in two directions, both requiring that employers consistently apply policies regarding the use of criminal history information in employment decisions and requiring an individualized analysis before the use of criminal history information. Employers should make sure that their policies and practices regarding the use of criminal history information are consistently applied and provide for an individualized assessment of the risks posed by a criminal history. Employment decisions made on the basis of criminal history information should be thoroughly documented to reflect a careful analysis of the job-related nature of the offenses and business necessity for making such a determination.