EEOC Issues New Guidance on Employer Use of Criminal Records

The Equal Employment Opportunity Commission (“EEOC”) recently issued new enforcement guidance relating to the use of arrest and conviction records by employers in making employment decisions. The link to this guidance is at: http://www.eeoc.gov/laws/guidance/arrest-conviction.cfm

This new guidance updates EEOC guidance on the topic issued over a 20 year period. According to the EEOC, an update was necessary because “there have been important legal and social changes. In 1991, Congress amended the Civil Rights Act to add Title VII disparate impact analysis, among other things. Since the 1990s, technology has made criminal history information much more accessible to employers. The number of working-aged individuals with criminal records in the population significantly increased during this period, especially in the African American and Hispanic communities.” The EEOC believes that use of criminal records has resulted in exclusion of minorities, particularly blacks and Hispanics, from employment.

The Need for Background Checks and Information About Criminal Conduct

Employers routinely include questions about criminal history in the employment application process and often conduct background checks on prospective employees. These types of inquiries are necessary for a number of reasons, as employers have legitimate interests to protect. For example, this type of information may help prevent employee theft, such as where a prospective employee has a prior conviction for a crime or crimes relating to theft of property, embezzlement, or the like. Similarly, information that a prospective employee was convicted of a violent crime in the past, such as armed robbery, rape or assault, may help protect against potential workplace violence, and may also protect the public, customers and others with whom the individual may come in contact as an employee. Other valid reasons exist for such background checks.

As noted above, the focus of the EEOC’s guidance is on Title VII’s prohibition against discrimination on the basis of race and national origin. Neither Title VII nor other federal laws provide per se protection to individuals with arrests or conviction records. However, individuals may be subject to discrimination because of race or national origin based upon criminal records under one of two theories. First, an employer may look at two individuals who have the same or similar criminal histories and yet treat the two differently based upon race or national origin. Second, an employer may have a policy or practice that appears to be neutral on its face, yet may have a “disparate impact” on individuals of a particular race or national origin because they are more frequently excluded based upon the policy.

The New Guidance

The new guidance does a number of things. First, it emphasizes that employment should be denied by reason of a criminal record only after an “individualized assessment,” considering the individual and how his or her history relates to the particular job. The guidance points to the following factors an employer should consider in evaluating criminal records: (1) the nature and gravity of the offense or conduct, (2) the time that has elapsed since the offense and completion of any sentence or probation, and (3) the nature of the job at issue. As part of this assessment, the guidance indicates that an employer should notify the individual that he or she may be denied employment because of criminal history, provide the individual with an opportunity to show why he or she should not be excluded and to provide any additional information for the employer to consider, and then determine whether exclusion based upon the criminal record is justified as job-related and consistent with business necessity.

The guidance also states that an employer should consider the specific facts and circumstances of the conduct at issue, the number of offenses for which the individual was convicted, the applicant’s age at the time of conviction or release, evidence that the individual performed the same type of work, post conviction, with no known incidents of criminal conduct, the length and consistency of employment history before and after the offense or conduct, rehabilitation efforts, including education or training, employment or character references, and any information regarding fitness for the particular position. The guidance is lengthy and includes a number of examples of fact scenarios showing when it would and would not be appropriate to exclude individuals from employment based upon past criminal records.

The steps and factors identified by the EEOC could turn “individualized assessments” into complicated processes that could impose significant burdens on employers. In addition, some of the information may be difficult to verify or discover, such as how well the applicant performed at a prior job or why the applicant may have left a prior job (since few former employers give out such detailed information about former employees), or details about the applicant’s incarceration and release. In many instances, the employer may be asked to rely almost exclusively upon the prospective employee’s account of the facts in making its decision.

The guidance does not identify a minimum standard an employer must meet in conducting this “individualized assessment,” but merely notes that that some assessments will not require as much effort as others. In some instances, such as where the applicant has a recent conviction for stealing prescription drugs, and is seeking a job at a medical clinic or pharmacy, the process should not be problematic. However, in other cases, the process may raise more questions than it answers.

The EEOC’s proposed best practices

The guidance identifies a number of “best practices” that the EEOC encourages employers to implement in dealing with criminal records. Among other things, the guidance advises employers to, “Eliminate policies or practices that exclude people from employment based on any criminal record.” In other words, the EEOC advises that employers should not have a blanket prohibition against hiring individuals with past criminal records. The guidance also provides that employers should:

• 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.

Some of these “best practices” may be difficult to implement, as it may, for example, be difficult to identify the specific types of criminal offenses that may disqualify an individual from a particular position, and it may also be difficult to limit inquiries concerning criminal records to offenses that may be job related for the position and consistent with business necessity.

State and Local Laws

Employers should also be aware of state and local laws when dealing with the criminal history of applicants. Some states, such as California, prohibit asking about an arrest or considering any charge that did not result in conviction. Massachusetts prohibits asking about criminal history on an initial application. In Hawaii, employers may inquire about criminal history only after making a conditional job offer. Some states, such as Pennsylvania and Wisconsin, allow an employer to consider convictions only to the extent they are job-related.

Takeaways for Employers

Given the EEOC’s obvious interest in this area, employers should take a look at their employment applications, and policies and procedures for screening applicants, to ensure that they take into account the EEOC guidance. Although the EEOC guidance does not have the force of law, and is not legally binding on employers, it may persuasive to courts in deciding claims of discrimination and so employers should make appropriate business judgments about whether and to what extent to implement the EEOC’s proposed practices. The bottom line is that the EEOC believes a criminal background should not disqualify any individual from employment unless it is “job-related and consistent with a business necessity.” Even if an employer is generally uncomfortable hiring an individual who has been convicted of a crime-even a serious one-the EEOC position is that the employer needs to conduct a fairly detailed and specific inquiry into the facts before making an employment decision. Accordingly, employers should be cautious when excluding individuals from employment on such grounds.