The EEOC voted 4-1 to release enforcement guidance regarding the use of arrest and conviction records in the hiring process. With the easy availability of criminal records today, and a population who is increasingly coming into contact with the criminal justice system, particularly African-American and Hispanic men, the EEOC determined that updated guidance was needed. While acknowledging that having a criminal history is not a protected class under Title VII, liability may lie where an employer’s reliance on a criminal record to deny employment treats an employee differently due to his or her protected status or disproportionately screens out a protected group without relation to the position and business necessity.
The issue of whether an employer’s policy disparately treats a protected group is usually much easier to determine. Essentially, if an employer’s background check process treats an applicant from a protected group differently than an applicant outside that group (regardless of whether the other applicant is also in a protected group), then a finding of disparate treatment is likely.
However, determining whether a facially neutral criminal background check policy disparately impacts applicants in a protected group requires significantly more analysis. If an applicant can show that the employer’s policy eliminates members of a protected group more than applicants that are not part of the protected group, which may be as simple as showing that members of the protected group are arrested and convicted at a higher rate, the policy likely has a disparate impact. The employer must then show that the policy is justified in light of the job requirements and the necessities of the business.
In determining whether the policy is job related and consistent with business necessity, the EEOC emphasizes that arrests and convictions must be treated differently. An arrest is not sufficient to deny employment, but an employer may make the employment decision based upon the conduct underlying the arrest, if the conduct makes the applicant unfit for the job. The important distinction is the focus on the conduct, not the arrest. In short, the conduct may be considered if it would be sufficient to deny employment if the applicant had not been arrested.
Conviction records tend to be more reliable, and therefore, may be acceptable grounds for denying employment. However, the Commission does recommend that employers refrain for asking about convictions on job applications and limit any inquiries to those related to the position. To show that the policy operates to deny employment only to those applicants whose criminal conduct, and the dangers it indicates, are linked to the risks of the position, employers should either:
- create a screening process that is narrowly tailored, with the process validated per the Uniform Guidelines on Employment Selection Procedures or
- develop a screening process where, upon screening out an applicant, an individualized assessment is conducted
The individualize assessment requires notifying the applicant and allowing him or her to demonstrate that they should not be excluded. The employer should consider a number of factors during the assessment, including: the circumstances of the conduct, the number of convictions, whether the same time of work was performed post-conviction, the employment history before and after the conviction, rehabilitation efforts and character references. While quite onerous, if the applicant does not cooperate with the employer’s efforts to gather information, a decision may be rendered with the information the employer was able to gather. While not mandatory, the Commission does note that a screening process with an individual review will be less likely to violate Title VII.
Where federal laws and regulations disqualify convicted applicants from certain occupations, the employer is entitled to deny employment based on applicable convictions. However, state and local laws that limit or prohibit the employment of applicants with certain criminal convictions are preempted by Title VII and are not a viable defense.
In light of this new guidance, employers would be wise to eliminate policies where applicants are excluded for any negative criminal history, in favor of a policy that is narrowly and specifically tailored to the open position, with an individual review process. In order to narrowly and specifically tailor the policy, the employer should consider the requirements of the job and the liability risks that the job entails, and then determine the specific offenses that indicate unfitness for performing job. Consideration must also be given to the duration of the exclusion based on the available evidence. Finally, and of great importance, managers and other hiring decision-makers must receive training regarding the new hiring procedure in order to ensure that the criminal background check policy is implemented as intended and in compliance with Title VII.