United States: EEOC Issues Enforcement Guidance On Employer Use Of Arrest And Conviction Records

Originally published on the Employer's Law Blog

On April 25, 2012, the U.S. Equal Employment Opportunity Commission ("EEOC") voted 4-1 to approve an updated Enforcement Guidance titled "Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964." The EEOC also issued a related Questions and Answers document. The newly issued guidance expands on Title VII guidance the EEOC issued more than 20 years ago.

According to the EEOC, the new guidance is predicated on and supported by federal court precedent concerning the application of Title VII to employer consideration of a job applicant's or employee's criminal history and incorporates judicial decisions issued since the passage of the Civil Rights Act of 1991. The guidance also updates relevant data and consolidates previous EEOC policy statements on the use of criminal history information. The EEOC includes in the guidance examples of steps employers can take to comply with Title VII when making employment decisions based on criminal history. The guidance concludes with recommended "best practices" for employers.

The enforcement guidance generally discusses liability based on disparate treatment, but it focuses on disparate impact liability. According to national criminal history data on which the EEOC relied in drafting the guidance, criminal background-checking policies have a disproportionate effect on racial and ethnic minorities. The national data provides the EEOC with a basis for investigating Title VII disparate impact charges challenging adverse actions based on criminal records.

The enforcement guidance:

  • Rejects the blanket exclusion of applicants with criminal history.
  • Suggests that employers not ask about convictions on job applications.
  • Notes the difference between arrest and conviction records, with the former typically not providing justification for an adverse employment action - though employers can make decisions based on the conduct underlying an arrest if the conduct makes the individual unfit for the position in question.
  • Recommends that employers develop a policy that creates a targeted screen to consider the nature of the crime, the time elapsed, and the nature of the job before screening out candidates based on criminal history.
  • Recommends that, for those identified by the screen, employers provide an opportunity for an "individualized assessment" to determine if the policy as applied is job-related and consistent with business necessity. The assessment should consider a number of factors, including
  • facts or circumstances surrounding the offense or conduct;
  • the number of offenses for which the individual was convicted;
  • age at the time of conviction or release from prison;
  • work history; and
  • rehabilitation efforts, such as training and education.

Though the enforcement guidance is not binding on employers, it is nevertheless important for employers to examine their policies regarding background checks and applicants' or employees' criminal history because the EEOC will consider the document when enforcing Title VII. Further, although the guidance does not prohibit employers from asking about convictions on job applications or require that employers provide an "individualized assessment" for candidates screened out by a background check, the EEOC will look to see whether employers have these policies in place when investigating a charge challenging an adverse action based on criminal history. When reviewing their policies, employers must also consider risks beyond noncompliance with Title VII, such as liability based on negligent hiring.

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