EEOC Issues Guidance on Criminal Background Checks, But Retains Employer Protections for Positions of National Security

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The Equal Employment Opportunity Commission (EEOC) recently issued its highly anticipated Enforcement Guidance regarding employer use of arrest and conviction records and compliance with Title VII of the Civil Rights Act of 1964. The EEOC has long expressed its commitment to the issue, as evident in its 1987 and 1990 releases, as well as the meeting it held to discuss the issue on July 26, 2011. The Guidance results from the EEOC’s findings that criminal record exclusions generally cause a disparate impact and may be founded on incomplete and inaccurate information. To address the problems it identified, the EEOC issued the Guidance and a corresponding “Best Practices” list for employers to consider to ensure compliance with Title VII.

Guidance

The EEOC advises employers to reconsider their present applications and remove blanket, “catch-all” questions that ask whether the individual has been convicted of any crimes. If and when an employer chooses to make inquiries on this topic, the employer should be able to demonstrate that the criminal back-ground information is job-related and consistent with business necessity.

The Guidance also makes clear that the EEOC believes the use of arrest records in employment decisions is neither job related nor consistent with business necessity, and therefore, does not comply with Title VII. In fact, the use of arrest records has long been discouraged by the EEOC because an arrest, unlike a conviction, does not establish that criminal conduct has occurred, nor does it report the final outcome of the arrest. Accordingly, an employer’s decision to exclude an applicant on the basis of an arrest alone would be considered a violation of Title VII. However, consistent with the overarching theme of the Guidance, an employer may consider the underlying conduct referenced in the arrest report if the conduct makes the individual unfit for the position at issue.

Somewhat similar to the mitigating conditions available in the Adjudicative Guidelines for Determining Eligibility for Access to Information, the Guidance counsels employers to consider the following factors when analyzing an applicant’s criminal history:

the nature and gravity of the offense or offenses (which the EEOC explains may involve evaluating the harm caused, the legal elements of the crime, and the classification, i.e., misdemeanor or felony);

the time that has passed since the conviction and/or completion of the sentence (which the EEOC explains as looking at particular facts and circumstances and evaluating studies of recidivism); and

the nature of the job held or sought (which the EEOC explains requires more than examining just the job title, but also specific duties, essential functions, and environment).

As in the whole person concept in clearance decisions, the EEOC indicates its preference for employer use of individualized assessments when making employment decisions based on criminal background information, and these assessments can be offered by the employer in response to a challenge from the EEOC or an individual litigant. This assessment includes:

The facts or circumstances surrounding the offense or conduct;

The number of offenses for which the individual was convicted;

Older age at the time of conviction, or release from prison;

Evidence that the individual performed the same type of work, post conviction, with the same or a different employer, with no known incidents of criminal conduct;

The length and consistency of employment history before and after the offense or conduct;

Rehabilitation efforts, e.g., education/training;

Employment or character references and any other information regarding fitness for the particular position; and

Whether the individual is bonded under a federal, state, or local bonding program.

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