EEOC Issues Guidance on Use of Arrest and Conviction Records Under Title VII

By a 4 to 1 vote, the U.S. Equal Employment Opportunity Commission (“EEOC” or “Commission”) issued updated enforcement guidance under Title VII of the federal anti-discrimination laws on the use of arrest and conviction records in the hiring process (“Guidance”).  Enforcement Guidance on Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964. 

Although the Guidance is not binding rulemaking, it does state the policy of the federal agency charged with enforcement of the federal anti-discrimination laws, and, accordingly, the Guidance is important information for both employers who use criminal records in their hiring and retention processes and individuals who suspect they have been denied employment or promotions, or have been discharged because of their criminal records. 

According to the EEOC, the need for revised Guidance was driven by several factors, including (1) the increased frequency at which Americans have come to interact with the criminal justice system;  (2) what the EEOC terms “particularly high” incarceration rates for African Americans and Hispanics;  and (3) increased employer access to criminal records, which are often inaccurate or incomplete. 

While Title VII does not place persons with criminal histories in a protected class, the EEOC Guidance is addressed to the situations where the use of criminal records results in discrimination based on race, color, religion, sex or national origin.  Those situations occur when an employer uses information gained in a criminal background check to treat members of protected class differently than others (disparate treatment), or when a facially neutral policy – such as refusing to hire anyone convicted of a certain class of crime – results in a disproportionate impact on a protected class and is not justified by a business need (disparate impact).  Where a policy results in such a disproportionate impact on a protected class under Title VII, to avoid liability, an employer can defend the policy by demonstrating that the challenged practice is “job related for the position in question and consistent with business necessity.” 

The Guidance devotes the greatest attention to discussing the considerations that the Commission deems relevant to assessing whether criminal record exclusion policies or practices are sufficiently job related.  While the EEOC Guidance and other applicable statutes, rules and authorities should be consulted in full in connection with any employment decisions or policy or practices based on criminal records, several aspects of the Guidance will be most relevant to employers and employees.

First, the Guidance draws a distinction between arrest records and records of convictions.  According to the Commission, because the fact of an arrest does not establish that criminal conduct has occurred, exclusion based on an arrest itself is not job related and consistent with business necessity, although employers may consider the conduct underlying an arrest if the conduct makes the individual unfit for the position in question.  In contrast, a conviction record will usually serve as sufficient evidence of wrongful conduct, although in certain circumstances, there may be reasons for an employer not to rely on the conviction record alone when making an employment decision.

Second, the EEOC Guidance outlines circumstances in which the EEOC “believes employers will consistently meet the ‘job related and consistent with business necessity’ defense” to a disparate impact claim.  The circumstance most relevant to small- to mid-sized employers involves, in the EEOC’s view, a policy employing not merely a properly devised targeted screen to determine whether an exclusion based on a conviction is job related for the position in question and consistent with business necessity, but also an individualized assessment.  To pass muster, a targeted screen excluding persons based on convictions must at least consider the three factors identified in Green v. Missouri Pacifica Railroad, 549 F.2d 1158 (8th Cir. 1977):  (i)  the nature of the crime;  (ii) the  time elapsed;  and (iii) the nature of the job.  According to the Commission, the policy should in addition then provide an opportunity for an “individualized assessment” whereby those people identified by the screen for exclusion are given an opportunity to demonstrate why the exclusion should not be applied in their circumstances.  The employer must then determine, based on that information, if the policy as applied is job related and consistent with business necessity. 

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The EEOC Guidance includes the following examples of “best practices for employers who are considering criminal record information when making employment decisions”: 

General

  • Eliminate policies or practices that exclude people from employment based on any criminal record.
  • Train managers, hiring officials and decision-makers about Title VII and its prohibition on employment discrimination.

Developing a Policy

  • Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct.
    • Identify essential job requirements and the actual circumstances under which the jobs are performed.
    • Determine the specific offenses that may demonstrate unfitness for performing such jobs.
      • Identify the criminal offenses based on all available evidence.
      • Determine the duration of exclusions for criminal conduct based on all available evidence.
        • Include an individualized assessment.
      • Record the justification for the policy and procedures.
      • Note and keep a record of consultations and research considered in crafting the policy and procedures.
  • Train managers, hiring officials, and decisionmakers on how to implement the policy and procedures consistent with Title VII.

Questions about Criminal Records

  • 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.

Confidentiality

  • Keep information about applicants’ and employees’ criminal records confidential.  If used at all, limit use to the purpose for which it was intended.

This article is intended only as a general discussion of these issues.  It is not considered to be legal advice nor should you rely on the above.  We would be pleased to consider providing additional details or advice about specific situations.  For additional information on this topic, please feel free to call upon any RPL attorney.