EEOC Issues Guidance on Use of Arrest and Conviction Records
On April 25, 2012, the Equal Employment Opportunity Commission (EEOC) issued 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 provided a Q&A document that provides a good overview of the more lengthy Guidance.
Employers have always risked violating Title VII when using criminal records to screen applicants for hire or internal promotion. Even in the face of such risk, over 90% of employers use criminal background checks for some applicants or employees, and over 70% use them to screen all applicants, according to a recent SHRM study. The risk arises under the “disparate impact theory.”
Under this theory, if an employer’s neutral employment policy, screening applicants for criminal backgrounds, results in a disproportionate number of minorities being eliminated from employment consideration, the policy violates Title VII, unless the company can prove the policy is job related and consistent with business necessity. In addition, employers must make sure they do not treat members of one race, color, religion, sex or national origin differently than members of any other group based on the member’s criminal background. This would trigger a “disparate treatment” claim under Title VII.
According to the Guidance, a policy that automatically excludes everyone with a criminal record will not be job related and consistent with business necessity, unless such exclusion is required by federal law. Instead, the EEOC suggests employers develop a screening process that considers the nature of the crime, the time elapsed, and the nature of the job. It should then undertake an individualized assessment of those identified in the initial screen to determine if the person should be excluded based on job relatedness and business necessity. While such individualized assessment is not required, the EEOC states the use of a screen without an individualized assessment is more likely to violate Title VII.
Employers should consider adopting some best practices outlined by the EEOC to avoid running afoul of the law including:
-Eliminate policies or practices that exclude people from employment based on any criminal record.
-Train managers about these requirements.
-Develop narrowly tailored written policies and procedures 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 a particular job.
-Determine the duration of exclusions for criminal conduct.
-Include an individualized assessment.
-Record the justification for any exclusion.
-Limit inquiries to criminal records that are job related and consistent with business necessity.
-Keep criminal record information confidential and only use it for the purpose for which it was intended.
Connecticut employers should also be aware of a state statute that prohibits them from requesting arrest, criminal charge, or conviction information in cases where the records have been “erased” or a pardon has been granted. Conn. Gen. Stat. § 31-51i.
