On April 25, 2012, the United States Equal Employment Opportunity Commission (“EEOC”) issued updated enforcement guidance on employers’ use of arrest and conviction records when making employment decisions under Title VII of the Civil Rights Act of 1964 (“Title VII”). The EEOC’s guidance (the “Guidance”) is intended to codify and build on its prior policies concerning employers’ use of criminal records. Nevertheless, the Guidance, which is effective immediately, supersedes the EEOC’s prior policies on this issue.

Conviction Records

The EEOC’s previous guidance explained that excluding individuals from employment on the basis of their conviction records has a disparate impact on race and national origin. Under Title VII, employers may not maintain a policy that results in a disparate impact unless they can demonstrate that such a policy is “job related and consistent with business necessity.” Accordingly, it has been the EEOC’s long-held position that a criminal record exclusion is unlawful under Title VII unless an employer can show that the exclusion, for the position in question, satisfies the “business necessity” defense. The EEOC’s prior guidance indicated that an employer can establish the business necessity defense by showing that it considered the following three factors: (1) the nature and gravity of the offense; (2) the amount of time elapsed since the offense and/or completion of the sentence; and (3) the nature of the position being sought in relation to the offense.

However, the Guidance now provides a new explanation of how an employer “may” be able to justify a criminal record exclusion based solely on the factors previously identified. Specifically, the employer potentially can satisfy the requisite standards when the employer implements a targeted screen that is “narrowly tailored to identify criminal conduct with a demonstrably tight nexus to the position in question.” The Guidance identifies two situations in which employers will “consistently” meet the business necessity defense: (a) the exclusion policy has been validated in accordance with the Uniform Guidelines on Employee Selection Procedures; or (b) the exclusion policy is based on the factors listed above and the employer provides an “individualized assessment” for those people who were excluded by the screen.

With respect to validation, the Guidance explains that while there may be social science studies demonstrating a link between convictions and future job performance that could assist in validating some employment exclusions, “such studies are rare.” The Guidance thus indicates that the necessary data to perform a validation study would be difficult to obtain.

Accordingly, employers are counseled to apply the other situation and perform an individualized assessment in conjunction with the factors outlined above in order to satisfy the business necessity defense. Pursuant to the Guidance, an individualized assessment would generally include a meeting with the individual to provide him/her with an opportunity to explain the circumstances of the conviction. Once an individual provides the employer with additional information, the employer then must consider whether or not the exclusion, as applied to that individual person, is still job related and consistent with business necessity.

Arrest Records

The Guidance distinguishes between an employer’s reliance on arrest records as opposed to conviction records. Specifically, while convictions constitute reliable evidence that the underlying criminal conduct occurred, arrest records are not proof of criminal conduct. Thus, employers cannot deny an employment opportunity exclusively on the basis of an arrest record.

Blanket Exclusions

The Guidance prohibits blanket policies that exclude everyone with a criminal record from employment. According to the Guidance, such policies will not be job related and consistent with business necessity, and therefore, on their face, will violate Title VII, unless the policy is required by federal law.

Significantly, while employers’ compliance with federal laws and regulations that restrict the employment of individuals with certain criminal backgrounds will shield them from Title VII liability, compliance with state and local laws does not provide the same protection. The Guidance explains that employers who take an adverse employment action required by state or local laws that is inconsistent with Title VII will be required to show that such action is job related and consistent with business necessity.

Recommendations

  • Employers should review their job applications and their policies concerning the use of arrest and conviction records with counsel, and in conjunction with the “Employer Best Practices” that are generally discussed in the Guidance. In that regard, employers should keep in mind the following best practices to avoid Title VII disparate impact liability in their hiring/promotion practices:  
  • Eliminate policies that completely exclude applicants from employment based on criminal records or arrest records;
  • Develop a written policy for screening applicants and employees for criminal conduct. This policy should:
    • Identify the essential functions of the employers’ positions and the circumstances under which they are performed;
    • Determine specific criminal offenses that may demonstrate unfitness for those positions and how those offenses might demonstrate that an individual is unfit to perform the essential functions of those positions;
    • Determine the duration of the exclusions for criminal conduct (including an opportunity for individualized assessment);
    • Record the justification for your policy, including making a record of the consultations and research performed when creating this policy;
  • When asking questions about criminal records, limit any inquiries to only those questions that are job-related and consistent with business necessity;
  • Ensure that all information about applicants’ and employees’ criminal records is kept confidential;
  • Train managers on this new EEOC guidance and any new employment policies that are adopted for its implementation;

The EEOC’s guidance, “Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964,” is available here. The EEOC also has issued a Q&A, which is available here.