On April 25, 2012, the Equal Employment Opportunity Commission (EEOC) by a 4-1 vote issued Enforcement Guidance on the use of arrest and conviction records in employment decisions under Title VII of the Civil Rights Act of 1964 (Title VII). Although the Guidance went into effect immediately, it did not materially change the state of the law in this area. Rather, the Guidance provides more in-depth and consolidated analyses of the issues than the EEOC’s previous publications.
Criminal Records and Use of Employer Background Checks
The EEOC focused its Guidance on race and national origin, noting that arrest and incarceration rates are particularly high for African-American and Hispanic men. African-Americans and Hispanics are arrested at a rate that is 2 to 3 times their proportion of the general population. According to the EEOC, “(a)ssuming that current incarceration rates remain unchanged, about 1 in 17 White men are expected to serve time in prison during their lifetime; by contrast, this rate climbs to 1 in 6 for Hispanic men; and to 1 in 3 for African American men.”
Employers are increasingly conducting criminal background checks on applicants and employees. In one survey, a total of 92 percent of responding employers stated that they subjected all or some of their job candidates to criminal background checks.
Disparate Treatment and Disparate Impact Claims
Whether an employer’s reliance on a criminal record to deny employment violates Title VII depends on whether it is part of a claim of employment discrimination based on race, color, religion, sex, or national origin. Title VII liability for employment discrimination is determined using two analytic frameworks: “disparate treatment” and “disparate impact.”
An employer is liable for violating Title VII based on disparate treatment when the plaintiff demonstrates that it treated him differently because of his race, national origin, or another protected basis. For example, there is Title VII disparate treatment liability where the evidence shows that a covered employer rejected an African American applicant based on his criminal record but hired a similarly situated White applicant with a comparable criminal record.
An employer is liable for violating Title VII when the plaintiff demonstrates that the employer’s neutral policy or practice has the effect of disproportionately screening out a Title VII-protected group and the employer fails to demonstrate that the policy or practice is job related for the position in question and consistent with business necessity. With respect to criminal records, there is Title VII disparate impact liability where the evidence shows that an employer’s criminal record screening policy or practice disproportionately screens out a Title VII-protected group and the employer does not demonstrate that the policy or practice is job related for the positions in question and consistent with business necessity.
The EEOC noted that “(t)he fact of an arrest does not establish that criminal conduct has occurred. Arrests are not proof of criminal conduct. Many arrests do not result in criminal charges, or the charges are dismissed. Even if an individual is charged and subsequently prosecuted, he is presumed innocent unless proven guilty.” An arrest, however, may in some circumstances trigger an inquiry into whether the conduct underlying the arrest justifies an adverse employment action. Title VII calls for a fact-based analysis to determine if an exclusionary policy or practice is job related and consistent with business necessity. Therefore, according to the EEOC, “an exclusion based on an arrest, in itself, is not job related and consistent with business necessity.”
By contrast, a record of a conviction will usually serve as sufficient evidence that a person engaged in particular conduct, given the procedural safeguards associated with trials and guilty pleas. However, there may be evidence of an error in the record, an outdated record, or another reason for not relying on the evidence of a conviction. For example, a database may continue to report a conviction that was later expunged, or may continue to report as a felony an offense that was subsequently downgraded to a misdemeanor.
Some states require employers to wait until late in the selection process to ask about convictions. The policy rationale is that an employer is more likely to objectively assess the relevance of an applicant’s conviction if it becomes known when the employer is already knowledgeable about the applicant’s qualifications and experience. As a best practice, and consistent with applicable laws, the Commission recommends that employers not ask about convictions on job applications and that, if and when they make such inquiries, the inquiries be limited to convictions for which exclusion would be job related for the position in question and consistent with business necessity.
Criminal Convictions that are Job Related and Consistent with Business Necessity
To establish that a criminal conduct exclusion that has a disparate impact is job related and consistent with business necessity under Title VII, the employer needs to show that the policy operates to effectively link specific criminal conduct, and its dangers, with the risks inherent in the duties of a particular position.
Two circumstances in which the Commission believes employers will consistently meet the “job related and consistent with business necessity” defense are as follows:
- The employer validates the criminal conduct screen for the position in question per the Uniform Guidelines on Employee Selection Procedures (Uniform Guidelines) standards (if data about criminal conduct as related to subsequent work performance is available and such validation is possible); or
- The employer develops a targeted screen considering at least the nature of the crime, the time elapsed, and the nature of the job and then provides an opportunity for an individualized assessment for people excluded by the screen to determine whether the policy as applied is job related and consistent with business necessity.
The Uniform Guidelines describe three different approaches to validating employment screens. However, they recognize that “[t]here are circumstances in which a user cannot or need not utilize” formal validation techniques and that in such circumstances an employer “should utilize selection procedures which are as job related as possible and which will minimize or eliminate adverse impact as set forth [in the following subsections].”
The Individualized Assessment
Because the Uniform Guidelines on validation can be confusing, time consuming and expensive to use, most employers use the individualized assessment. According to the EEOC, the individualized assessment would consist of notice to the individual that he has been screened out because of a criminal conviction; an opportunity for the individual to demonstrate that the exclusion should not be applied due to his particular circumstances; and consideration by the employer as to whether the additional information provided by the individual warrants an exception to the exclusion and shows that the policy as applied is not job related and consistent with business necessity.
The EEOC believes that use of individualized assessments can help employers avoid Title VII liability by allowing them to consider more complete information on individual applicants or employees, as part of a policy that is job related and consistent with business necessity.
The EEOC stated that “(i)ndividualized assessment generally means that an employer informs the individual that he may be excluded because of past criminal conduct; provides an opportunity to the individual to demonstrate that the exclusion does not properly apply to him; and considers whether the individual’s additional information shows that the policy as applied is not job related and consistent with business necessity.”
The individual’s showing may include information that he was not correctly identified in the criminal record, or that the record is otherwise inaccurate. Other relevant individualized evidence includes, for example:
- The facts or circumstances surrounding the offense or conduct;
- The number of offenses for which the individual was convicted;
- Older age at the time of conviction, or release from prison;
- Evidence that the individual performed the same type of work, post conviction, with the same or a different employer, with no known incidents of criminal conduct;
- The length and consistency of employment history before and after the offense or conduct;
- Rehabilitation efforts, e.g., education/training;
- Employment or character references and any other information regarding fitness for the particular position; and
- Whether the individual is bonded under a federal, state, or local bonding program.
If the individual does not respond to the employer’s attempt to gather additional information about his background, the employer may make its employment decision without the information.
The EEOC’s List of Best Practices
The following are the EEOC’s examples of best practices for employers who are considering criminal record information when making employment decisions.
- Eliminate policies or practices that exclude people from employment based on any criminal record.
- Train managers, hiring officials, and decisionmakers about Title VII and its prohibition on employment discrimination.
Developing a Policy
- Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct.
- Identify essential job requirements and the actual circumstances under which the jobs are performed.
- Determine the specific offenses that may demonstrate unfitness for performing such jobs.
- Identify the criminal offenses based on all available evidence.
- Determine the duration of exclusions for criminal conduct based on all available evidence.
- Include an individualized assessment.
- Record the justification for the policy and procedures.
- Note and keep a record of consultations and research considered in crafting the policy and procedures.
- Train managers, hiring officials, and decisionmakers on how to implement the policy and procedures consistent with Title VII.
Questions about Criminal Records
- When asking questions about criminal records, limit inquiries to records for which exclusion would be job related for the position in question and consistent with business necessity.
- Keep information about applicants’ and employees’ criminal records confidential. Only use it for the purpose for which it was intended.
Conclusions and Recommendations
It should be noted that employers are not required by federal law to implement all of the EEOC’s Best Practices. However, if they implement some or all of these practices, they should be in a better position to defend a Title VII claim based on the use of criminal conviction records. Employers should also remember that criminal record searches conducted by third party vendors are subject to the strict requirements of the Fair Credit Reporting Act and similar laws in some states. In addition, some states also have laws that limit or require the consideration of criminal record information in certain employment decisions.