On April 25, 2012 the EEOC issued its much-anticipated updated enforcement guidelines on employers’ use of criminal arrest and conviction records in the background screening process. Since then, employers have had many questions about what the new guidance means and how it impacts their practices. This article attempts to answer some of the more frequently-asked questions.
1. What is the EEOC’s role in addressing employers’ use of criminal records?
While the EEOC is not a lawmaking body, the Commission is responsible for enforcing federal laws that protect against job discrimination, including Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex, or national origin. The Guidance specifically addresses the consideration of arrest and conviction records in employment decisions under Title VII.
2. Why the need for updated guidance?
The latest guidance is an update to the longstanding previous direction issued more than twenty years ago. According to the EEOC, the current updates are needed to reflect today’s increased access to criminal record information, case law analyzing Title VII requirements for criminal records exclusions, and other developments.
3. What’s “wrong” with using criminal records in making employment decisions?
It is legal and in most cases, prudent for employers to use criminal records in employment related decisions. However, an employer’s use of criminal arrest and conviction records is challenged by concerns over disparate treatment and disparate impact.
Disparate treatment is intentional unlawful discrimination that occurs when an employer treats an individual or a class of individuals differently because of their race, national origin, or other protected basis. Disparate impact is inadvertent unlawful discrimination that takes place when an employer’s neutral policy or practice has a disproportionately negative effect on a member of a protected class or an entire protected class.
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Without proper practices and policies in place, an employer runs a high risk of discriminating against certain protected classes by way of disparate treatment or disparate impact, and this is where the EEOC’s enforcement focus comes in.
4. How Will the EEOC Evaluate My Company’s Employment Practices?
Here’s the big question employers should be asking themselves: Are my employment screening practices job-related and consistent with business necessity?
This question has long been the EEOC’s overarching measure for determining the suitability of employment screening practices. To delve deeper, assessing job-relatedness and business necessity concerning the use of criminal records requires employers to consider:
- The nature and gravity of the offense or conduct;
- The time that has passed since the offense or conduct and/or completion of the sentence;
- The nature of the job held or sought.
In its updated guidance, the EEOC references numerous court cases deemed relevant in assessing whether criminal record exclusion policies and practices will meet the test of job relatedness and business necessity.
5. What is the Best Way to Meet the Job Relatedness / Business Necessity Defense?
In its Guidance the EEOC points out that employers can consistently meet the job relatedness/business necessity defense by validating the position’s criminal screening per the Uniform Guidelines on Employee Selection Procedures (Uniform Guidelines) standards, OR — and this is big — by developing a targeted screen considering at least the nature of the crime, the time elapsed, and the nature of the job, and then providing an opportunity for an individualized assessment for people excluded by the screen to determine whether the policy as applied to the individual is job related and consistent with business necessity.
6. What are some Best Practices for the Appropriate Use of Criminal Records in Employment Decisions?
The EEOC provides specific examples of best practices for employers who are considering criminal record information when making employment decisions. These include:
- Eliminate policies or practices that 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;
- Develop a narrowly tailored written policy and procedures for screening for criminal records;
- Identify essential job requirements and the actual circumstances under which the jobs are performed;
- Determine the specific offenses that may demonstrate unfitness for performing specific jobs;
- Identify the criminal offenses based on all available evidence;
- Determine the duration of position-specific exclusions for criminal conduct based on all available evidence;
- Record the justification for the policy and procedures;
- Note and keep a record of consultations and research considered in crafting the policy and procedures;
- Train managers, hiring officials, and decision-makers on how to implement the policy and procedures consistent with Title VII;
- 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; and
- Keep information about the criminal records of applicants and employees confidential (only use it for the purposes for which it was intended).
The key takeaway for employers is to recognize the warning signal being issued by the EEOC and take this as an opportunity to examine your policies and procedures. As EEOC investigation activity increases, the last thing you want to do is find yourself the subject of unwanted attention.