• Employers Need to Review Their Criminal Background Screening to Ensure Compliance with the EEOC’s New Guidance
  • November 15, 2012 | Author: Anne G. Bibeau
  • Law Firm: Vandeventer Black LLP - Norfolk Office
  • Earlier this year, the Equal Employment Opportunity Commission (“EEOC”) issued its new Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. The Enforcement Guidance addresses how employers can avoid running afoul of Title VII, the federal law that prohibits race and other discrimination in employment, when they use criminal background checks to screen job applicants.

    Studies show that the majority of employers check applicants’ criminal records for at least some of their positions. While it is generally accepted that employers should never base employment decisions on an arrest that did not result in a conviction, employers vary widely in what convictions they do consider to disqualify an applicant. An employer’s decision to reject an applicant because of his criminal record can trigger a discrimination claim, especially if the employer is applying its policy inconsistently.

    Even if the employer is applying its policy consistently, however, the EEOC takes the position that screening applicants for criminal records can have a disparate impact on African American and Hispanic men because of their disproportionate conviction rate. A criminal background screening policy that has a disparate impact on a protected group violates Title VII, unless the employer can show that its policy is job-related for the position in question and consistent with the employer’s business necessity.

    The EEOC’s Guidance provides that in order to meet this defense, employers should make an individualized assessment for each applicant with a criminal record to determine whether the applicant’s particular criminal record renders him unsuitable for the particular position for which he has applied. The employer should consider the nature and gravity of the crime for which the applicant was convicted, the time that has elapsed since the conviction or the applicant’s completion of the sentence, and the nature of the position for which he is applying. If those factors would lead the employer to decide that the applicant is unsuitable for the position, the employer should notify the applicant and give him an opportunity to provide any additional information he feels is relevant, such as information about the accuracy of the criminal record, his age at the time of conviction, his employment history before and after the conviction, his rehabilitation efforts, and any employment or character references. The employer should take any information the applicant provides into consideration in determining whether to reject the applicant.

    If the employer does not perform the individualized assessment recommended in the EEOC’s Guidance, the employer will have to show that its criminal background screening policy is narrowly tailored to identify criminal conduct with a demonstrably tight nexus to the particular position for which the applicant has applied. For example, a policy against placing people with recent convictions for credit card fraud in positions where they will have access to customers’ credit card numbers would be narrowly tailored and have a tight nexus to the position, whereas a policy against hiring anyone with any criminal conviction would not. An employer can also defend its criminal background screening policy if it is required by federal (but not state) law.

    Employers should closely review how they screen applicants with criminal records to ensure that they make such decisions on a case-by-case basis and assess each applicant with a criminal record individually, or that they have a narrowly tailored policy tightly related to the specific job position. As is true with all employment decisions, employers should document their reasons for rejecting an applicant. Such documentation may be critical in defending against a discrimination charge.