EEOC Releases Updated Enforcement Guidance On the Consideration of Arrest and Conviction Records In Employment Decisions
By: Carly Osadetz
The Equal Employment Opportunity Commission (EEOC) has issued an updated Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII to consolidate and update prior EEOC opinions. The Guidance explains that employers who consider the criminal history of applicants and employees may face Title VII liability under one of two theories: 1) a disparate treatment claim, which asserts that the employer treated individuals with a criminal record differently based on their race or national origin; and 2) a disparate impact claim, which asserts that the application of a neutral criminal history policy disproportionately disqualified a protected group and the policy is not job-related and connected with business necessity.
The main focus of the Guidance is on disparate impact discrimination. The Guidance states that an employer's neutral policy may disproportionately impact some protected individuals, and may violate Title VII if the policy is not "job related and consistent with business necessity." This requires the employer to show that its policy effectively links specific criminal conduct and its dangers to the risks inherent in the job. The EEOC supplied two examples of situations that will meet this "job related and consistent with business necessity" threshold:
- Where the employer validates the criminal conduct exclusion for the position in question under the Uniform Guidelines and Selection Procedures; or
- Where the employer considers the nature of the crime, the time elapsed since the conviction and the nature of the job applied for, and then provides an opportunity for individual assessment for those identified by the screen to determine whether the policy as applied to those individuals is job related and consistent with business necessity.
Individualized assessments are not always required but the Guidance repeatedly emphasizes that that blanket, across-the-board screening processes are more likely to violate the law.
It is the EEOC's position that an exclusion based only on an arrest, as opposed to a conviction, record is never job related or consistent with business necessity. However, the Guidance explains that an employer may make an employment decision based on the conduct underlying an arrest if the conduct makes the individual unfit for the position.
The Guidance also explains that even if state or local law requires employers to prohibit or restrict the employment of individuals with criminal records, an employer's policy must still be "job related and consistent with business necessity." The fact that an employer's policy was adopted to comply with a state or local law or regulations will not always shield that employer from liability under Title VII.
The Guidance suggests a variety of "best practices" for employers, including the following:
- Eliminate policies or practices that automatically 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, and on how to implement the policy and procedures consistent with Title VII.
- Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct. The policy should identify essential job requirements and the actual circumstances under which the jobs are performed, along with specific criminal offenses that may demonstrate unfitness for performing the jobs.
- 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.
- Keep information about applicants' and employees' criminal records confidential. Only use it for the purpose for which it was intended.