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 (Enforcement 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 Enforcement 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.

The EEOC indicates that the Enforcement Guidance was prompted in part by recognition of the significant increase over the last twenty 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 to a 2010 survey conducted by the Society for Human Resources Management indicating that 73 percent 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 among other matters 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.

Leaving aside the detail of the legal analysis presented in the Enforcement Guidance under the various discrimination theories, the EEOC provides a practical map of sorts to employers wishing to avoid a tangle with the EEOC. As an initial matter, the Enforcement 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 anaylsis of disparate impact precedent, but it may nevertheless be of use in determining employer best practices from a range of perspectives. The Enforcement Guidance emphasizes that the screening process should be narrowly crafted to identify criminal conduct that is specifically job-related, conduct that has a demonstrable connection to the duties, and responsibilities of the position for which the individual is applying.

The Enforcement 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 Enforcement 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 EEOC suggests that the individualized assessment would include consideration of such things as:

  • The facts and circumstances surrounding the offense or conduct
  • The number of offenses
  • The individual’s age at the time of conviction or release from prison
  • Evidence that the individual performed the same type of work post-conviction with no known incidents of criminal conduct
  • The length and consistency of employment history before and after the offense or conduct
  • Rehabilitation efforts
  • References and any other information regarding the individual’s fitness for the particular position
  • Whether the individual is bonded under a federal, state, or local bonding program.

The Enforcement 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.

The EEOC Enforcement Guidance and its impact on employer recruiting and hiring practices will be discussed in further detail at our upcoming Employment & Labor Law seminar on November 7, 2012. In the interim, employers with questions regarding the use of arrest and conviction records as an applicant screening tool—and/or that wish to evaluate their current practices in light of recent developments—are encouraged to contact a member of our employment and labor team.

Takeaway

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