Careful What You Ask For: The EEOC Takes a Hard Line on the Use of Arrest and Conviction Records in Employment Decisions

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[author: Alyesha P. Asghar]

The U.S. Equal Employment Opportunity Commission (EEOC) has long contended that when employers use criminal histories to make employment decisions, they run the risk of violating Title VII of the Civil Rights Act by basing their decision on information that has an unfair impact on minorities. The EEOC recently stepped up its enforcement efforts and publicly settled with Pepsi for $3.13 million over the beverage company’s use of a blanket exclusion policy of people with criminal records. Shortly thereafter, the EEOC issued an Enforcement Guidance clarifying its position concerning the use of criminal records in employment decision-making. This Guidance should be considered by any employer covered by Title VII before using criminal records to make employment decisions.

Although the EEOC does not directly regulate criminal background checks or the acquisition of criminal history information, it is responsible for enforcing Title VII, which prohibits discrimination in employment based on various protected characteristics. Statistically, African Americans and Hispanics are arrested and convicted more than Caucasians, and studies have shown that criminal records have a negative impact of employability of these minority groups. Consequently, the EEOC has contended that the use of criminal records in making employment decisions can have a disparate impact against minorities.

Arrests vs. Convictions

While the use of convictions may be permissible, the EEOC’s stance is that arrest records are almost always an impermissible basis for employment decisions. Specifically, arrest records do not establish that criminal conduct occurred, and exclusion from a job based on an arrest is not “job related and consistent with business necessity.” However, employers can make decisions based on conduct underlying the arrest if the conduct makes the individual unfit for a particular job. By comparison, the EEOC recognizes that convictions usually serve as evidence that a person engaged in particular conduct. Nonetheless, the EEOC recommends that employers “not ask about convictions on job applications and that, if and when they make such inquiries, the inquiries be limited to convictions for which exclusion would be job related for the position in question and consistent with business necessity.”

Preventing Disparate Impact Claims

Obviously, an employer must be uniform in its decision-making regarding the use of criminal information in hiring decisions or risk establishing a disparate treatment claim. More problematic is avoiding disparate impact claims; disparate impact discrimination occurs when an employer’s neutral policy falls more heavily on persons belonging to a protected class. In order to protect itself from a charge that a policy excluding job applicants with criminal convictions created a disparate impact, an employer must establish that the exclusion was “job related and consistent with business necessity.” To do this, an employer must show that there is a link between its hiring criteria and the requirements of the job through validation of the employment screen, or development of targeted screening.

Under the validation approach, employers would need to determine whether their use of criminal records meets business necessity by referring to the approaches set forth in the EEOC’s Uniform Guidelines on Employee Selection Procedures. However, the Guidance recognizes that there are significant data challenges associated with this process because, “[a]lthough there may be 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, such studies are rare at the time of this drafting.” This method remains more a theoretical possibility than a real approach for employers.

Under the targeted screening approach, an employer can show that it considered: (1) the nature of the crime; (2) the time elapsed since the criminal conduct; and (3) the nature of the job at issue and then made an individualized assessment to determine whether screen was, in fact, job-related and consistent with business necessity. This assessment should consist of: (1) notice to the individual that he has been screened out because of a criminal conviction; (2) an opportunity for the individual to demonstrate that the exclusion should not be applied due to particular circumstances; and (3) consideration of whether the additional information provided by the individual warrants an exception to the exclusion. Although the assessment is not required, the Guidance warns that “the use of a screen that does not include individualized assessment is more likely to violate Title VII.” Thus, not providing an individual assessment after using a targeted screening is a “red flag” for EEOC investigators. In fact, even if an employer demonstrates that its policy is job-related and consistent with business necessity, the EEOC’s position is that a complainant may still prevail by proving that there exists a less discriminatory “alternative employment practice” that serves the employer’s legitimate goals as effectively as the challenged practice that the employer refused to adopt.

Interaction with Other Laws

Federal laws and regulations that require employers in certain industries to exclude individuals based on specific convictions provide a defense to a Title VII claim as long as an employer does not impose an exclusion that goes beyond the scope of the federally imposed restriction. However, Title VII preempts state and local laws that prohibit the employment of individuals with certain criminal records if they “require or permit the doing of any act which would be an unlawful employment practice under Title VII.” Thus, an exclusionary policy that was adopted to comply with a state or local law or regulation will not necessarily shield the employer from Title VII liability if it is not job-related and consistent with business necessity.

Best Practices

Employers should remember the following tips in light of the EEOC’s recent Guidance:

  • Review background screening policies and practices in light of the Guidance and eliminate policies that: 1) ask for arrest information and 2) impose an absolute bar to employment based on any conviction;
  • Do not ask applicants for disclosure of convictions that are not job-related and consistent with business necessity;
  • Train managers about appropriate use of conviction history in hiring, promotion and separation decisions;
  • Tailor screening procedures to ensure that they are job-related and consistent with business necessity; and
  • Keep information about criminal history confidential.

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