EEOC Releases Guidance On Employers’ Use Of Criminal Records In Employment Decisions

The Equal Employment Opportunity Commission (EEOC) issued its much anticipated guidance (EEOC Enforcement Guidance) on the use of criminal records in employment decisions. The guidance continues the longstanding policy approach of the EEOC in this area, consolidating and superseding policy statements issued by the EEOC in 1987 and 1990.

Technically, the guidance is not binding on courts. However, courts often rely on agency policy statements and, of course, the EEOC will rely on the guidance in its investigation of charges. Although the guidance was not subject to the public comment or review process which applies to rulemaking, the EEOC did hold two public meetings on the use of criminal history in employment decisions and received approximately 300 public comments in response to topics discussed during one of the meetings.

It is undisputed that having a criminal record is not a protected class under Title VII of the Civil Rights Act of 1964 (Title VII). Rather, it is the use of an individual's criminal history in making employment decisions that may, in some circumstances, violate VII. A violation of Title VII may occur when an employer treats the criminal history of a minority less favorably than a similarly situated non-minority with a similar history (known as disparate treatment). A violation of Title VII may also occur when an employer's neutral policy (such as excluding from employment all applicants with a criminal conviction) disproportionately impacts individuals protected under Title VII (known as disparate impact).

In the guidance, the EEOC notes that the fact that arrest and incarceration rates are particularly high for African American and Hispanic men supports a finding that excluding individuals based on their criminal records has a disparate impact based on race and national origin. The employer may defend an exclusion by showing that the exclusion is job-related for the position in question and consistent with business necessity. If established, the burden shifts back to the individual to demonstrate that there is a less discriminatory alternative employment practice that serves the employer's legitimate business goals as effectively and that the employer refused to adopt.

The EEOC identifies two circumstances in which employers may meet the job related and consistent with business necessity defense:

• The criminal record exclusion for the position in question is validated in accordance with the standards set forth in the Uniform Guidelines on Employee Selection Procedures (if data about criminal conduct as related to subsequent work performance is available and such validation is possible); or
  

• A targeted screen is developed which considers at least the nature of the individual's 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 if the policy, as applied, is job related and consistent with business necessity.

According to the EEOC, the individualized assessment should include notice to the individual that the individual has been excluded from the position in question because of his/her criminal history; an opportunity for the individual to demonstrate that the exclusion should not be applied due to the individual's particular circumstance; 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 to the individual is not job related and consistent with business necessity. The EEOC notes that an individualized assessment is not necessarily required in all circumstances but that the use of individualized assessments can help employers avoid Title VII liability by allowing them to consider more complete information on individuals.

The EEOC identifies specific information which it deems relevant to an employer's determination of whether to exclude an individual as a result of the individual's criminal history:

• The facts or circumstances surrounding the criminal offense or conduct;  

• The number of criminal offenses for which the individual was convicted; 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 criminal offense or conduct;
  Rehabilitation efforts by the individual, including education and 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.

An individual may also provide information that the criminal record incorrectly identified the individual or that the record is otherwise in accurate. Although the assessment will vary from individual to individual based on the individual's particular circumstance, employers must remember that their decisions should be consistent for similarly situated individuals with similar history or they risk a claim for disparate treatment.

The guidance distinguishes between arrest and conviction records. Employers who rely solely on the report of an arrest should proceed with caution; the EEOC takes the position that an exclusion based on an arrest standing alone is not job related and consistent with business necessity because an arrest does not establish that criminal conduct occurred. However, the EEOC explains that the conduct underlying an arrest may be a lawful basis to deem the individual unfit for the position.

Federal laws and regulations which restrict or prohibit employing individuals with certain criminal records provide a defense to a Title VII claim. The same is not true, however, for state and local laws or regulations which are preempted by Title VII if they require or permit an act that would be unlawful under Title VII.

Included in the guidance are the following examples of best practices for employers who consider 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.

• Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct and train managers, hiring officials and decisionmakers on how to implement the policy and procedures consistent with Title VII.

• If questions are asked of applicants regarding criminal records, ask the questions later in the hiring process and not on job applications.

• 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 and only use the information for the purpose for which it was intended.

In reviewing policies and practices regarding the use of criminal records, employers should also consider state laws, some of which provide protections to individuals related to criminal history inquiries by employers. Additionally, the Fair Credit Reporting Act establishes procedures for employers to follow when they obtain criminal history information from third-consumer reporting agencies.

For further information regarding the EEOC's guidance or if you have questions regarding your company's hiring procedure, please contact Jeffrey M. Embleton, Amy L. Kullik, James A. Budzik or Ann E. Knuth in our Labor and Employment Group.

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