[author: Katy Rand]
Last month the Equal Employment Opportunity Commission (EEOC) issued enforcement guidance regarding when and how an employer may rely upon criminal background information without running afoul of Title VII. Although Title VII does not prohibit employers’ use of criminal background checks, the EEOC has long taken the position that employers’ reliance on such information may be unlawful. The EEOC’s new guidance clarifies and updates its position.
The guidelines address two types of discrimination: disparate impact and disparate treatment. Disparate treatment liability will arise where, for example, an employer rejects an African American applicant based on his criminal record but hires a similarly situated Caucasian applicant with a comparable criminal record. Employers are generally familiar with Title VII’s prohibition on disparate treatment discrimination, and the EEOC’s guidance offers nothing remarkable or new on this issue.
The bulk of the new guidance is devoted to discussing the second type of discrimination, disparate impact, which does not require any showing of discriminatory intent or stereotyping. Instead, disparate impact claims arise when an employer has a facially neutral policy that, when applied, disproportionately screens out members of a Title VII-protected group.
Because an arrest is not proof of criminal conduct, the EEOC takes the position that employers may not rely upon an arrest record, standing alone, to deny an employment opportunity. The EEOC recognizes, however, that there may be situations in which the employer will need to inquire further into the conduct underlying the arrest; and that the conduct, rather than the arrest itself, may be relied upon for employment purposes.
Convictions, unlike arrests, are evidence that a person has engaged in criminal conduct. According to the EEOC, however, policies that automatically exclude an applicant based on a prior criminal conviction will typically have a disparate impact on African American and Hispanic applicants, who are arrested and convicted at a much higher rate than the non-minority population. Thus, says the EEOC, employers who rely upon a criminal conviction to deny employment must demonstrate business necessity, usually by conducting an individualized assessment of the relationship between the specific conviction—including the nature and gravity of the offense, the time passed since the offense, and conduct and/or completion of the sentence—and the risks posed by the applicant in the position sought. This individualized assessment, the EEOC explains, consists of notice to the individual; an opportunity for the individual to explain why he or she should not be excluded under the circumstances; and consideration by the employer as to whether, given the individual’s explanation, exclusion would be job related and consistent with business necessity.
The EEOC takes the position that employers should require applicants to disclose only those convictions for which exclusion would be job related for the position in question and consistent with business necessity. Many states, however, have their own laws regarding the lawful scope of inquiry when it comes to conviction data. In Massachusetts, for example, employers generally may not ask about criminal histories on written job applications and are prohibited from inquiring about arrests, first convictions for certain misdemeanors, or any conviction of a misdemeanor within the past five years. In New Hampshire, employers must use specific language (“Have you ever been arrested for or convicted of a crime that has not been annulled by the court?”) to inquire into an applicant’s criminal record. Employers should familiarize themselves with the laws of the states in which they operate to ensure compliance.
The EEOC’s guidance makes clear that compliance with federal law or regulations is a defense to a charge of discrimination. Thus, employers who rely upon federal statutes or regulations which govern the employment of individuals with specific convictions in certain industries or positions will not violate Title VII. Compliance with state law, however, is not necessarily a defense, at least in the eyes of the EEOC, which states that “state and local laws or regulations are preempted by Title VII if they purport to require or permit the doing of any act which would be an unlawful employment practice under Title VII.” While state and local laws restricting the employment of individuals with certain convictions in particular industries or positions will usually be job related and consistent with business necessity, the EEOC’s position leaves open the possibility that an employer will be forced to violate state or local law in order to avoid violating Title VII. It offers no further guidance to employers faced with this Hobson’s Choice, however.
The EEOC’s guidance does not have the force of law; but courts routinely rely upon it when analyzing discrimination claims. To comply with the new guidance and to avoid claims, employers should do the following:
eliminate policies or practices that automatically exclude applicants based on any criminal record;
replace those policies and procedures with ones that are both narrowly tailored and flexible;
identify the essential requirements of each position and the specific offenses that generally will demonstrate unfitness for performing it; and
in cases where an applicant has been convicted of an offense that would typically render him or her unfit for the job, conduct an individualized assessment to determine whether the circumstances surrounding the applicant’s conviction merit an exception.
In effect, employers should have an interactive dialogue—not unlike the one required under the Americans with Disabilities Act—about conviction history.
While the EEOC’s guidance does not represent a dramatic departure from or expansion of its previous guidance, its emphasis on an “individualized assessment,” requiring a dialogue with employees, is noteworthy. The EEOC has increasingly taken the position, in its guidance and enforcement activities, that employers have broad duties to seek and obtain mitigating information from employees that might justify exceptions to the employers’ rules, regardless of whether those rules are neutral and regardless of how even-handedly employers apply them. While the EEOC’s position is well intentioned, it has the effect of undermining employers’ ability to rely upon bright line rules, which have many virtues, including clarity, efficiency, and consistency. With consistently applied rules being replaced by dialogues and exceptions, employers unfortunately may find themselves subject to more, not fewer, discrimination claims.
If you have questions about the use of conviction data in hiring decisions or would like assistance preparing a policy in compliance with the EEOC’s new guidance, please contact Katy Rand at email@example.com or any other member of Pierce Atwood’s Employment Group.