EEOC’s guidance is based on previous findings

EEOC’s guidance on Consideration of Arrest and Conviction Records in Employment Decisions is based on previous findings related to Title VII of the Civil Rights Act of 1964, prohibiting employment discrimination based on race, color, religion, sex and national origin.  The recent guidance, consistent with three previous EEOC policy statements, states that the “use of an individual’s criminal history in making employment decisions may, in some instances, violate the prohibition against employment discrimination under Title VII of the Civil Rights Act of 1964.”  Consistent with previous findings, EEOC indicated that the use of conviction records has a disparate impact on African American and Hispanic classes because these groups are convicted at disproportionately higher rates than the rest of the population.

Recent guidance delineates the difference between arrest and conviction records.  Specifically, arrest does not, in itself “establish that criminal conduct has occurred” and does not in itself imply a job related reason for exclusion.  It does however state that an employer “may consider conduct underlying an arrest if the conduct makes the individual unfit for the position in question.”  In contrast, conviction records “serve as sufficient evidence that a person engaged in particular conduct.”  Nevertheless, the guidance does state that “there may be reasons for an employer not to rely on the conviction record alone when making an employment decision.”

The recent guidance also creates a distinction between disparate treatment and disparate (adverse) impact.  Specifically, disparate treatment may occur when an employer treats criminal history information differently for different applicants or employees, based on their race or national origin.  Therefore, an employer is liable for violating Title VII when the plaintiff demonstrates that it treated a person differently because of their race, national origin, or another protected basis.  The guidance lists several kinds of evidence that may be used to establish disparate treatment including but not limited to:

  • Biased statements
  • Inconsistencies in the hiring process
  • Similarly situated comparators
  • Employment testing
  • Statistical evidence

Conversely, disparate (adverse) impact is a facially neutral policy excluding all applicants with arrests or convictions that disproportionately impact protected classes.  Here, an employer’s neutral policy or practice has the effect of disproportionately screening out a Title VII-protected group and the employer fails to demonstrate that the policy or practice is job related for the position in question and consistent with business necessity.  In Green v. Missouri Pacific Railroad (MoPac) (1975), the Eighth Circuit held that business necessity can be determined in part by:

  • 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; and
  • The nature of the job held or sought.

In Green v. MoPac, MoPac had a policy of excluding all individuals with convictions other than minor traffic offenses.  Green was excluded because he refused induction into the military and served 21 months in prison.  The Eighth Circuit reversed the District Court stating:
We cannot conceive of any business necessity that would automatically place every individual convicted of any offense, except a minor traffic offense, in the permanent ranks of the unemployed…To deny job opportunities to these individuals because of some conduct which may be remote in time or does not significantly bear upon the particular job requirements is an unnecessarily harsh and unjust burden.

In light of the above, the new guidance does allow situations in which “an employer may be able to justify a targeted criminal records screen” based on the Green v. Missouri Pacific Railroad, depending on the “the particular criminal conduct and jobs involved, taking into consideration fact-based evidence, legal requirements, and/or relevant and available studies.”

Nevertheless, the guidance does state that “the use of individualized assessments can help employers avoid Title VII liability by allowing them to consider more complete information.”  To this effect, two recommendations are made by the recent guidance.  The first, an individualized assessment, where the employer “informs the individual that he may be excluded because of past criminal conduct”, thereby providing the individual an opportunity to “demonstrate that the exclusion does not properly apply to him” through additional information showing “the policy as applied is not job related and consistent with business necessity.”  Relevant individualized evidence may include:

  • Incorrectly or misidentified information in the criminal record
  • The record is otherwise inaccurate
  • The facts or circumstance 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 preformed 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.

It should be noted that if the individual does not respond to the employer’s attempt to gather additional information about his background, the employer may make its employment decision without the information.

Ultimately, the new guidance does yield to federal laws and regulations pertaining to the employment of individuals with specific convictions, whereby these individuals are not permitted to hold certain positions in industries in both the private and public sectors, including the procurement of certain occupational licenses and security clearances.  Therefore, only if an employer decides to impose an exclusion that “goes beyond the scope of a federally imposed restriction, the discretionary aspect of the policy would be subject to Title VII analysis.”

In the end, the enforcement guidance recommends the following employer best practices:

  • 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 procedure for screening applicants and employees for criminal conduct.
    • Identify essential job requirements and the actual circumstances under which the jobs are performed.
    • Determine the specific offenses that may demonstrate unfitness for performing such jobs.
      • Identify the criminal offenses based on all available evidence.
    • Determine the duration of exclusions for criminal conduct based on all available evidence.
      • Include an individualized assessment.
    • 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.
  • Keep information about applicants’ and employees’ criminal records confidential. Only use it for the purpose for which it was intended.

The content provided herein by Kairos Services, Inc. is for informational purposes only and not a substitute for professional advice.  You should seek independent advice from one of our professionals before acting upon any opinion or information contained in this mailer or our website.

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