Per the EEOC’s new Guidance, arrest records can be used as “evidence of conduct” (although not as “evidence of violations of the law”).  Accordingly, if an employer prohibits the “conduct” for which someone was arrested, or this “conduct” otherwise makes the individual unfit for the job at issue, they may use a record of an arrest to reject the applicant or employee for the job. 

Records of a criminal conviction on the other hand may be used not only as “evidence of conduct” but also as “evidence of unlawful conduct” or that “the law has been violated” by the individual in question. 

The Guidance issued by the EEOC this week did not differ from its past Guidance and Memoranda on this topic, which were based on statistical evidence which shows that “absolute bars on hiring anyone with a ‘criminal record’” disproportionately impact minorities and those from other countries.  Accordingly, the EEOC takes the position that such “absolute bars” can provide the basis for a disparate impact claim (meaning a claim of unintentional race or national origin discrimination) under Title VII.

An employer’s defenses to the use of such “absolute bars” would be to show that the statistical evidence the EEOC is using to show a disparate impact on the basis of race or national origin arising from the same does not apply in the geographical area where the employer does business, or that the employer does not have a reputation in the community of excluding individuals with criminal records such that they do not even bother to apply for jobs with them.  Merely showing that the employer “has a racially-balanced workforce” will not be sufficient to disprove a disparate impact claim however.

Short of an “absolute bar,” employers are still permitted to use an applicant (or an employee’s) criminal conviction records against him/her as long as there is a job-related reason for doing so.  As with many issues the EEOC has addressed of late, the Agency is not as concerned with the ends as the means which employers use to make their employment decisions in this area.  The fact that someone does not get a job or a promotion, etc. due to a criminal conviction record is not as troubling to the EEOC as the reason WHY this is – i.e., did the employer consider this particular applicant or employee’s particular conviction record in light of the particular job he/she was seeking such that they based the decision not to place the person in the position due to this record’s relationship to the actual job responsibilities which are involved in the same.  The EEOC also wants to see employers consider such factors as what the individual has been doing since the conviction – i.e., have they held other similar jobs without incident, have they been bonded under a federal, state or local bonding program, any rehabilitation efforts, or character references they can provide – as well as other individualized factors such as the individual’s age at the time of the conviction and how many offenses they were convicted of.

Accordingly, this Guidance should help those with DUI offenses on their records gain employment but will still not require employers to hire those with records of violent offenses or crimes involving theft or dishonesty, which would arguably be related to the job responsibilities performed in the course of most any job.  With regard to drug-related offenses, there would likewise need to be a demonstrated relationship between the job and the offense before denying employment in it on this basis. 

Along with providing its general vision as to how and when arrest and criminal conviction records should be used by employers, the new EEOC Guidance also provides the Agency’s take on some fairly-widespread practices among employers.

For instance, the EEOC believes that employers who use “profiles” or “screens” to analyze criminal convictions based on a formula made up of the nature of the crime, the time elapsed since it occurred, and the nature of the job/the circumstances under which the job at issue is performed can still violate Title VII unless there is a provision in the same for an “individualized assessment.”  This flies in the face of conventional “HR wisdom” which usually supports a “uniform/consistent” assessment of applicants or employees regarding any issue.  (The EEOC does say that there are some very limited circumstances where an individualized assessment may not be necessary when using such profiles or screens “where there is a demonstrably tight nexus between the criminal conduct evidenced by the conviction and the position in question.”)   Employers also will be required to explain how they came up with their “formula” if their profile is challenged, particularly regarding the “time elapsed since it occurred” standard.  “What statistical or other support do you have for your belief that someone is more likely to be trustworthy, etc. if their conviction is more than five years old, etc.?”

The EEOC also states that even if an employer can successfully demonstrate that its policy or practice relating to criminal conviction or arrest records is job related to the position in question and consistent with business necessity, an individual could still prevail on a disparate impact claim by showing that there was a “less discriminatory alternative policy or practice” that still would have served the employer’s legitimate business goals as effectively as the challenged practice but that the employer refused to adopt it.

If a federal law or regulation precludes the employment of someone based on a certain type of criminal record, this would be a defense to a Title VII claim.  However, the EEOC states in the new Guidance that the same is not true regarding state or municipal laws.  (So, yes, according to the EEOC, employers now have the unenviable choice of risking being found in violation of either Title VII or state or municipal law by hiring or failing to hire someone whose criminal record makes them ineligible for the position at issue based on such laws.  Here again, the employer’s ability to show that they applied an “individualized assessment” based on the nature of the job versus the conviction at issue could still provide a defense to a Title VII claim.  Employers just cannot rely exclusively on compliance with a state or local law the same way they can a federal one.  Hopefully, the state or local law has some factual/logical support, such that the employer can simply follow "the logic behind the law” to make the same decision it would have made if it had chosen to blindly follow the law, such as not permitting those with prior sex offense convictions to work with children, the elderly or the handicapped.)  

The EEOC also provides some “best practices” in this new Guidance.  Specifically,

• Employers are discouraged from asking about arrests or convictions on a generic form job application.
• Inquiries about arrests or convictions should be limited to those which are actually related to the job in question (rather than the more common, “Have you ever been convicted of any crime?” or “Have you ever been arrested?” open-ended questions).
• Job applicants in all cases should be given the opportunity to explain the circumstances surrounding an arrest or conviction, and employers should be willing to keep an open mind and not just reject out of hand any applicant who answers “yes” on their “Have you ever been convicted of an XYZ-related offense?” questions.
• Employers are still permitted to refuse to hire an applicant or terminate a current employee for lying about their criminal records.
• In making the “individualized assessments” encouraged by the EEOC, employers must still make sure they are not employing a “double standard” when it comes to their consideration of arrest and conviction records – assessing all criminal offenses committed by white individuals as being “not that big a deal” while disqualifying any minority or non-US-born individuals who have similar offenses on their records.
• The EEOC also recommends waiting until later in the application process than most employers currently do, such that inquiries regarding arrests and convictions are only asked of those who meet the minimum qualifications of the job/are actually being considered as finalists in the hiring process rather than as a “gateway inquiry” posed to all applicants for all jobs.

In closing, employers should note that this Guidance does not stand for the proposition that the EEOC can just get a copy of your job application and automatically find you in violation of Title VII just because you have a “Have you ever been convicted of a crime” or “arrested” question on there.  They still would have to show that these questions have created a disparate impact (again, based on either the fact that you have not had very many minority or non-US-born applicants to even apply for positions with you or that you have excluded some of those in these groups who have applied using these questions) and that there was no job-related basis for your doing so.

For assistance developing a policy/practice on considering arrest and conviction records based on this new Guidance, please feel free to contact Stacie Caraway or any other member of our Labor & Employment Law Practice Group.