On April 25, 2012, the EEOC issued updated Enforcement Guidance on
employers’ use of criminal background checks to screen applicants.
Citing statistics showing that blanket prohibitions on hiring those with
criminal records have a disproportionate impact on minorities, the EEOC
expanded the circumstances where a criminal background check policy or
practice may run afoul of Title VII – creating greater risk of liability
for employers.
The enforcement guidance does not have the force of a regulation but
will be the basis for EEOC challenges to widespread employer practices,
starting with the more than 100 charges pending at the EEOC containing
discrimination claims based on criminal records. Jacqueline Berrien, who
chairs the EEOC, said in a written statement that the new guidance
“clarifies and updates the EEOC’s longstanding policy concerning the use
of arrest and conviction records in employment.” However, the burden
put on employers to conduct a newly emphasized individualized assessment
will be greater under the new guidance.
This long-awaited guidance has been a key goal for employee advocates
who have argued that stricter limits are needed on employer use of
criminal records in order to reintegrate those who have been
incarcerated back into society. Many have argued that screening out
those who have been convicted, along with the common bans on their
voting, makes this impossible. The Commission cited statistics showing
that 1 in 17 Caucasian American men are expected to be incarcerated
during their lifetime, but that 1 in 3 African American males and 1 in 6
Hispanic males will be incarcerated. In a statement issued about the
new EEOC Guidance, NAACP President Benjamin stated, “Our criminal
justice system is deeply biased against people of color and that
disparity can carry over to the job search. These guidelines will
discourage employers from discriminating against applicants who have
paid their debt to society.”
Employers have argued that access to such information is necessary to
protect against fraud, theft, and violence in the workplace and to
protect against subsequent lawsuits for negligent hiring. Employer
practices range from outright bans on employing those with a criminal
history to more nuanced review of individual cases. The problem is
especially acute for the largest employers who process hundreds of
thousands, if not millions of applications each year.
In the guidance, the EEOC has bluntly informed employers that:
o exclusion based on arrest records is NOT job-related and consistent
with business necessity and will be considered prohibited racial and/or
natural origin discrimination.
o A blanket bar against employment of applicants with criminal
conviction records is also not job-related and consistent with business
necessity and will be considered prohibited discrimination.
o Employers should base hiring decisions on an “individualized
assessment” of an applicant’s fitness for the job, and an applicant’s
criminal record is relevant only if the conduct involved is “job related
for the position in question,” according to the guidance.
o Federal laws requiring such checks will trump the EEOC policy, BUT
similar state laws will NOT protect employers from EEOC findings of
discrimination.
The Guidance also includes some suggested best practices for
employers, including not asking for conviction information on job
applications, training managers and decision-makers about Title VII’s
prohibition on employment discrimination, and focusing on the underlying
conduct, not the arrest or conviction. It also provided some insight
into what it might consider a non-discriminatory criminal background
check policy. The recommended steps include identifying essential job
duties and the specific criminal offenses that may demonstrate unfitness
for performing these duties; determining the appropriate time elapsed
for the excluded criminal conduct; including an individual assessment;
and keeping records on the research, development and justification
regarding the policy and procedures.
The Guidance and Q & A document can be found at www.eeoc.gov. Paley Rothman’s Employment Law Group can also assist employers in reviewing and revising current criminal background check policies.
By Hope B. Eastman, Employment Lawyer.
First Published: The Law Firm of Paley Rothman Blog
