EEOC Releases Guidance on Use of Criminal Records in Employment Decisions

Yesterday, the EEOC released its new Guidance on the use of criminal records in employment decisions. The Guidance included the three elements for consideration previously set forth by the EEOC: 1) the nature and gravity of the offence or conduct, 2) the time that has passed since the offence or conduct and 3) the nature of the job held or sought.

In addition, the EEOC recommended: 1) employers eliminate any broad policies/practices that automatically exclude individuals with criminal histories, 2) develop narrowly tailored policies, 3) train selected employees on decision-making guidelines appropriate for the company and the position to be filled, 4) limit inquiries about criminal history to job-relatedness and business necessity and 5) keep any criminal information about an applicant or employee confidential.

Verifications, Inc.’s representatives will contact clients, as appropriate, with suggestions for process modifications.

On April 25, 2012, the Equal Employment Opportunity Commission (EEOC) released its “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964.” The EEOC also issued a Question and Answer document on the topic.

This Guidance is effective immediately and supersedes any previous policy statements issued by the EEOC on this topic. The release of this guidance emphasizes the EEOC’s intent to proactively ensure that employers are considering criminal history in a manner deemed appropriate by the EEOC and that the use of such information does not have a negative impact on certain segments of the population.

Use of Criminal Information
The EEOC did not advise employers to eliminate criminal history in employment decisions. However, the EEOC did provide several best practices and recommendations on the use of criminal records by employers.

Disparate Treatment and Disparate Impact Discrimination
The EEOC Guidance begins by discussing disparate treatment discrimination which occurs when a person can demonstrate the employer treated him/her differently because of “race, national origin, or another protected basis.” The Guidance also notes that employers should be cautious to avoid decision-making “infected by stereotyped thinking.”

To illustrate this concept, the EEOC provided examples of when employer conduct could lead to disparate treatment discrimination. One such example would be when an employer rejects an African American applicant based on criminal history, but hires a White applicant with a similar criminal history and qualifications. Further, the Guidance highlighted other types of evidence that employers engaged in disparate treatment discrimination. These examples included biased statements, inconsistencies in the hiring process, similarly situated comparators (individuals who are similar to the charging party in relevant respects, except for membership in the protected group), employment testing and statistical evidence.

Next, the EEOC addressed disparate impact discrimination, which occurs when a person “demonstrates an employer’s neutral policy or practice has the effect of disproportionately screening out a [protected] group” and does not connect the policy with job-relatedness or necessity. The Guidance then provides further information regarding policies/practices and how employers may demonstrate that their policies do not lead to a disparate impact. The Guidance further provides that merely demonstrating a workplace is “racially balanced” does not disprove disparate impact.

The Guidance recommends employers weigh three factors when assessing whether the existence of a criminal record is sufficient for job exclusion:

  • The nature and gravity of the offence or conduct
  • The time that has passed since the offence or conduct and/or
  • The nature of the job held or sought
The EEOC recommends that employers conduct “targeted assessments” and consider an “individualized assessment” where appropriate. This individualized assessment involves the employer speaking with the applicant, notifying him/her that he/she will not be considered for the position based on the criminal history and allowing the applicant to have the opportunity to explain and provide further information. This recommendation generally follows the adverse action process that employers are required to undertake under the Fair Credit Reporting Act (FCRA) when considering adverse action based, in whole or part, on information obtained in a consumer or investigative consumer report.

Finally, in relation to criminal convictions specifically, the Guidance points to the small handful of states that require employers to forgo inquiry into an applicant’s criminal history until further in the process and recommends that employers do not ask about criminal history and convictions on job applications, and that if and when they make such inquiries, they limit the inquiries to job-related exclusions and business necessity.

The Guidance recognizes that there are industries and employers who are required to exclude applicants per applicable regulatory and/or legislative requirements. The Guidance states explicitly that “Compliance with federal laws and/or regulations is a defense to a charge of discrimination.” However, if such “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.”

Best Practices
The EEOC Guidance concludes with “employer best practices” and recommends employers eliminate any broad policies/practices that automatically exclude individuals with criminal histories. Instead, the Guidance recommends that companies develop narrowly tailored policies, training pertinent employees on the decision-making guidelines appropriate for the company and the position to be filled. Any inquires into an applicant’s criminal record should be limited to job-relatedness and business necessity, and all applicant and criminal information should be kept confidential.

Verifications, Inc. recommends that employers consult with legal counsel on this matter. We will continue to provide information and analysis as more details regarding this Guidance come to light.