• New EEOC Enforcement Guidance On Use of Criminal Background Checks
  • December 13, 2012 | Author: Richard S. Rosenberg
  • Law Firm: Ballard Rosenberg Golper & Savitt LLP - Glendale Office

    The EEOC has issued new and important Enforcement Guidance in response to the growing percentage of working-age Americans who have criminal records, the disproportionate increase in this rate within the African American and Hispanic population, and increased employer access and use of such records. The Guidance explains how employers may use criminal records when making employment decisions without running afoul of federal anti-discrimination laws. Citing to arrest and incarceration statistics, the Guidance states that: "Assuming that the current incarceration rates remain unchanged, about 1 in 17 White men are expected to serve time in prison during their lifetime; by contrast, this rate climbs to 1 in 6 for Hispanic men; and 1 in 3 for African American men." The theory behind the new Guidance is that because African Americans and Hispanics are statistically more likely to have criminal records, hiring practices which automatically exclude anyone with a criminal record from employment will disproportionately impact African American and Hispanic job applicants and employees. Under Title VII of the Civil Rights act of 1964, such policies are impermissible, except to the extent they can be shown to be legitimately related to the job in question and "consistent with business necessity".


    The primary focus of the Guidance is on so-called criminal conduct exclusion policies and other practices which bar employment based upon criminal convictions. Such policies are deemed to be presumptively unlawful due to the heavier impacton applicants or employees of a particular race or ethnicity. However, EEOC acknowledges that exclusion of individuals with criminal records might not have a disparate impact on particular races or ethnicities in every instance, and that an employer may defend itself from a claim of disparate impact discrimination with statistical evidence showing that this is not the case.

    Nevertheless, the Guidance suggests that, in light of the national data cited above, the EEOC will presume that a criminal record exclusion has a disparate impact based on race or national origin, and require employers to prove otherwise. If an employer cannot do so, the employer must be able to prove that the policy -- as applied -- is legitimately "job-related" and narrowly-tailored to the needs of the business.

    The Guidance reiterates the Agency's longstanding position that an adverse employment decision based on a record of arrests which did not result in convictions is not permissible. Nor is a blanket exclusion of all individuals with any type of criminal record. At a minimum, EEOC states that a criminal exclusion policy must consider: 1) the nature and seriousness of the crime or crimes committed; 2) the length of time that has passed since the conviction (or release from incarceration); and 3) the nature of the position for which the individual applied.

    Employers who wish to use a criminal conduct screening policy ought to develop a targeted screen which considers all of these factors. For example, a targeted policy might exclude anyone with a conviction for a theft-related crime from holding a position with access to private financial information within seven years from the date of the conviction or release from incarceration.

    In addition, for a policy to be compliant, it must provide for an individualized assessment of applicants or employees excluded by the criminal conduct screen. This individualized assessment would consist of: 1) providing the individual with notice that an adverse decision based on his or her criminal record is being considered; 2) allowing the individual to demonstrate that the exclusion should not be applied in this particular case; and 3) consideration as to whether information provided by the individual warrants making an exception to the screening policy.

    The Guidance lists several examples of the type of information an applicant/employee might provide that would be relevant in this assessment, including:

    • Evidence that the criminal record is incorrect or inaccurate;
    • The facts or circumstances surrounding the offense or conduct;
    • The number of offenses for which the individual was convicted;
    • Older age of the employee as compared to his or her age at the time of the conviction, or of release from prison. (According to the EEOC, older age is associated with lower recidivism.);
    • Evidence that the individual performed the same type of work, post-conviction, without incident;
    • The length and consistency of employment history before and after the offense or conduct;
    • Rehabilitation efforts by the individual, e.g., obtaining education/training;
    • Employment or character references and any other information regarding fitness for the particular position;
    • Whether the individual is bonded under a federal, state, or local bonding program.

    What This Means For Employers

    Although EEOC guidance does not have the force of law, federal and state courts often defer to the Agency's interpretation of the civil rights laws and regulations it is charged with enforcing. The Guidelines also indicate the position the EEOC can be expected to take in investigating and pursuing charges of discrimination.

    The effect of the Guidance is to put the burden on employers to justify any action taken as a result of discovering that an applicant or employee has a criminal record. Employers should be prepared to prove that they have good reason to exclude individuals previously convicted of certain types of offences from holding certain positions. Employers must also be prepared to offer applicants or employees with criminal records a chance to explain any extenuating circumstances which would warrant making an exception to the exclusion.

    The Guidance recommends several "best practices" to ensure that employers' use of criminal records is in compliance with the law, including:

    • Eliminating any policy of blanket exclusion based on the existence of a criminal record.
    • Developing a narrowly-tailored, written policy and procedure for screening applicants/employees for criminal conduct.
    • Identifying specific offenses that demonstrate unfitness for performing specific jobs based on all available evidence.
    • Determining an appropriate duration for exclusions (e.g. 3 years, 5 years, etc.) based on all available evidence.
    • Including in the policy, a procedure for an individualized assessment of any applicant or employee screened out for past criminal conduct.
    • Recording the justification for the policy and procedure, including a record of consultations and research considered in crafting the policy.
    • Providing for strict confidentiality regarding employee/applicant criminal records.
    • Training managers to implement the policy, including limiting questioning regarding an applicant/employee's criminal record to records which are relevant to the performance of the job in question.

    State Law Restrictions

    Policies on the use of criminal background information must also take into consideration any applicable state law restrictions. For example, California law precludes employers from using records of arrests that did not result in conviction, or records of certain misdemeanor or minor convictions (including convictions for possession of small amounts of marijuana more than two years earlier) in making employment decisions. Employers must provide an employee or applicant with a copy of any public records investigation which results in an adverse employment action.