Employment-More On The EEOC’s Revised Enforcement Guidance On The Consideration of Arrest and Conviction Records in Employment Decisions

As discussed in my earlier blog (of April 26), the Equal Employment Opportunity Commission (the “EEOC”) has issued a revised Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 (the “Enforcement Guidance”) and a set of Questions & Answers (the “Q & As”) to discuss the Enforcement Guidance. At a minimum, the following should be taken from these documents.

How is Title VII Relevant To The Use Of Criminal History Information? There are two ways in which an employer’s use of criminal history information may violate Title VII. First, Title VII prohibits employers from treating job applicants with the same criminal records differently because of their race, color, religion, sex, or national origin (“disparate treatment discrimination”). Second, even where employers apply criminal record exclusions from employment uniformly, the exclusions may still operate to disproportionately and unjustifiably eliminate people of a particular race or national origin from job consideration (“disparate impact discrimination”). If the employer does not show that such an exclusion is “job related and consistent with business necessity” for the position in question, the exclusion is unlawful under Title VII.

Does Title VII Prohibit Employers From Obtaining Criminal Background Reports About Job Applicants Or Employees? No. Title VII does not regulate the acquisition of criminal history information. However, another federal law, the Fair Credit Reporting Act, does establish several procedures for employers to follow when they obtain criminal history information from third-party consumer reporting agencies. In addition, some state laws provide protections to individuals related to criminal history inquiries by employers.

What Are The EEOC’s Fundamental Positions On Title VII And Criminal Record Exclusions? The EEOC’s basic positions are-

–The fact of an arrest does not establish that criminal conduct has occurred. Arrest records are not probative of criminal conduct. However, an employer may act based on evidence of conduct that disqualifies an individual for a particular position.

–Convictions are considered reliable evidence that the underlying criminal conduct occurred.

–National data supports a finding that criminal record exclusions have a disparate impact based on race and national origin. The national data provides a basis for the EEOC to investigate Title VII disparate impact charges challenging criminal record exclusions.

–A policy or practice that excludes everyone with a criminal record from employment will not be job related and consistent with business necessity and therefore will violate Title VII, unless it is required by federal law.

What Are The Employer’s Best Practices For The Use Of Arrest And Conviction Records?

In General:

–Eliminate policies or practices that exclude people from employment based on any criminal record.

–Train managers, hiring officials, and decision makers 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. The policy should-

–Identify essential job requirements and the actual circumstances under which the jobs are performed.

–Determine the specific criminal offenses that may demonstrate unfitness for performing such jobs, and identify the methods for determining whether the criminal offenses have been committed, based on all available evidence.

–Determine the duration of exclusions for criminal conduct (for example, the exclusion could be that an individual cannot be considered for employment within 5 years after committing a felony), based on all available evidence and an individualized assessment of the applicant or employee in question.

–Include a justification for the policy and procedures.

–Require that a record be kept of consultations and research considered in crafting the policy and procedure.

–Require the training of managers, hiring officials, and decision makers on how to implement the policy and procedure in a manner consistent with Title VII.

Questions About Criminal Records:

–When asking questions about criminal records, limit inquiries to records for which exclusion from employment would be job related for the position in question and consistent with business necessity.

Confidentiality:

–Keep information about applicants’ and employees’ criminal records confidential. Use it only for the purpose for which it was intended.