On April 25, 2012, the U.S. Equal Employment Opportunity
Commission ("EEOC") approved new enforcement guidance
related to the use of arrest and conviction records by employers.
This guidance supersedes all prior guidance by the EEOC on the
subject and adds new complexities and considerations for employers
conducting criminal background checks on job applicants.
Background
Federal law does not specifically prohibit employers from accessing
or using an applicant's criminal history during the hiring
process. However, for decades, the EEOC has stated that Title VII
of the Civil Rights Act of 1964 ("Title VII") limits the
consideration of criminal background information to the extent that
such consideration has a discriminatory effect, or disparate
impact, on protected classes, including African Americans,
Hispanics, and men.
According to the EEOC's 1987 guidance, employers were
prohibited from applying blanket no-hire rules against individuals
with criminal records. Instead, conviction information could be
considered by the employer only if it was justified by business
necessity based on the consideration of three factors: (1) the
nature and gravity of the offense or offenses; (2) t>he time
that passed since the conviction and/or completion of the sentence;
and (3) the nature of the job held or sought (the three factors
identified by the court in Green v. Missouri Pacific
Railroad, 549 F.2d 1158 (8th Cir. 1977) and referred to as the
"Green Factors").
Further, the EEOC imposed additional restrictions on the use of
arrest information because, unlike convictions, the EEOC did not
consider arrests alone to be reliable evidence that an individual
engaged in unlawful conduct. Therefore, in order to establish a
business necessity to rely on arrest records, an employer had to
not only consider the three factors listed above, but also conduct
an evaluation of whether the applicant engaged in the misconduct
alleged in the arrest record.
In recent years, the EEOC increased its focus on employer use of
criminal history information. In July 2011, the full Commission
held a public meeting to examine "employment barriers faced by
individuals with arrest and conviction records." During the
meeting, the EEOC Chair Jacqueline Berrien stated that the use of
criminal records in hiring decisions is a "long-standing
concern" of the EEOC. She further noted that the EEOC was
considering amending or revising its guidance on the issue because
"when reentry fails, public safety, our economy, the future of
families, and the community as a whole are placed at
risk."
New EEOC Guidance
On April 25, 2012, the Commission voted four to one to enact new
enforcement guidance on the use of criminal information by
employers. While the EEOC's new guidance is not binding on the
courts, the guidance reflects the approach the Commission will be
taking in investigating and/or deciding whether to litigate the
allegations of a charge.
The new guidance focuses primarily on disparate impact claims.
Under the new guidance, the EEOC presumes that employer use of
criminal history information creates a disparate impact under Title
VII, given national data indicating that African Americans and
Hispanics are arrested and convicted at a higher rate than their
representation in the population. Therefore, the primary focus of
the EEOC's new guidance is on the employer's burden of
proving that its use of criminal background information is job
related and consistent with business necessity. This new guidance
is not simply a reiteration of the EEOC's prior policy.
Instead, it imposes additional duties on employers using criminal
convictions in the hiring process.
Indeed, the new guidance sets out two methods for employers to
establish that the use of criminal background information in hiring
is "job related and consistent with business necessity."
Both approaches are burdensome and costly to employers. First,
employers can formally validate the relationship between the
criminal conduct and the duties of the particular position at issue
using the EEOC's Uniform Guidelines on Employee Selection
Procedures. However, as the EEOC itself recognized, "social
science studies that assess whether convictions are linked to
future behaviors, traits, or conduct with workplace ramifications,
and thereby provide a framework for validating some employment
exclusions ... are rare at the time of this drafting."
Therefore, at least at this point, it would be very difficult to
sufficiently validate the use of criminal background information to
satisfy the EEOC's new guidance.
Second, assuming the employer is unable to validate the
relationship between the criminal conduct and its job, it can use
targeted exclusions that are guided by the Green Factors.
According to the EEOC, targeted exclusions are those "tailored
to the rationale for their adoption, in light of the particular
criminal conduct and jobs involved, taking into consideration
fact-based evidence, legal requirements, and/or relevant and
available studies."
However, even if the employer uses the "targeted screen"
approach to establish job relatedness and business necessity, the
EEOC suggests that it should also conduct an individualized
assessment of each person screened out by his or her criminal
background information. As an example of this individualized
assessment, the EEOC states that applicants could be given the
opportunity to explain why he or she should not be denied a
position due to the criminal information obtained by the employer.
Further, the new guidance specifies the following factors that
employers should assess when making the individualized inquiry into
an individual with a criminal history:
- 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.
This targeted screen approach likely would be burdensome to
employers, particularly in light of the ever-expanding use of
online applications. Per the new guidance, employers would be
ill-advised to apply broad criminal history exclusions across all
positions. Instead, employers would be required to tailor any
screen to the particular job at issue. Moreover, employers would
arguably have to engage in a time-consuming individualized inquiry
of every applicant excluded due to criminal history.
Furthermore, even if an employer is able to establish job
relatedness and business necessity by one of the two approaches
adopted by the EEOC, that is not the end of the analysis. The new
guidance explains that a plaintiff can still prevail in a disparate
impact claim against the employer if he or she is able to show that
the employer refused to adopt a less discriminatory
"alternative employment practice" that "serves the
employer's legitimate goals as effectively as the challenged
practice." However, the new guidance does not offer any
explanation about "alternative employment practices" in
the context of criminal background checks.
With respect to arrest records, the EEOC noted that such records
alone should not form the basis of an employment decision. However,
the employer may make employment decisions based on an
individual's underlying conduct associated with the arrest.
Although the guidance does not specifically address whether
employers should engage in an independent inquiry into the conduct
associated with arrest, such an inquiry is contemplated in the
examples provided by the EEOC and was required by previous EEOC
guidance.
Finally, the new guidance recognizes that some employers are
subject to federal statutory and/or regulatory requirements that
prohibit them from hiring individuals with criminal records in
certain positions. The EEOC indicated that their new guidance does
not preempt such other federal guidelines, but employers may be
subject to a claim under Title VII if they scrutinize individuals
to a higher degree than required under applicable federal
requirements.
Recommendations
Some private employers may be using criminal background checks in
their hiring process in a manner inconsistent with the EEOC's
guidance or applicable case law in this area. Moreover, the new
guidance might reflect a modified and more aggressive approach by
the EEOC in disparate impact claims in general. Specifically, the
EEOC's unprecedented step of requiring either validation or a
"targeted screen" establishing a clear link between the
employer's hiring criteria and the requirements of the specific
job at issue imposes cumbersome burdens on employers that ignore
the realities of the modern hiring process.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
Issues After The Election
