• Equal Employment Opportunity Commission Issues Updated Guidance on Use of Criminal History in Employment Decisions
  • May 2, 2012 | Authors: Rosemarie Luise Hill; William H. Pickering
  • Law Firm: Chambliss, Bahner & Stophel, P.C. - Chattanooga Office
  • The U.S. Equal Employment Opportunity Commission (EEOC) on April 25, 2012, announced its long-awaited "Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions" (Guidance). Although the Guidance is considered by some not to be as draconian as employers feared it might be, it certainly will make it riskier for employers to use background checks to systematically rule out hiring anyone with a criminal conviction. Links to the Guidance and a series of Questions and Answers from the EEOC are found at:

    http://www.eeoc.gov/laws/guidance/arrest&under;conviction.cfm

    http://www.eeoc.gov/laws/guidance/qa&under;arrest&under;conviction.cfm

    The Guidance basically states that while employers may legally consider criminal records in employment decisions for some positions, a policy that excludes all applicants or employees with convictions could violate employment discrimination laws, including Title VII, because such exclusions are likely to have a disparate impact on racial and ethnic minorities. Disqualifications from employment based on criminal histories will be permissible only if the employer can show that the exclusions are "job related and consistent with business necessity."

    The EEOC also makes the obvious point that a violation of Title VII may occur when an employer uses criminal history information differently for applicants or employees of different races or national origins (e.g., by disqualifying minority applicants with criminal convictions but not white applicants with convictions).

    The more significant aspects of the Guidance are its emphasis on the requirement that the use of criminal history in evaluating applicants be job related and consistent with business necessity and on the need for employers to develop "targeted" screening processes.  Targeted screening processes are those which do not automatically disqualify applicants with criminal histories but, instead, consider the nature of the crime, the time elapsed, and the nature of the job.

    The EEOC has taken the position that "an automatic, across-the-board exclusion from all employment opportunities because of any criminal conduct is inconsistent with the [law] because it does not focus on the dangers of particular crimes and the risks in particular positions."  In determining whether an applicant's criminal history would be relevant to the particular job for which the individual is being considered, the Guidance states that the employer should consider the duties of the position, the job's essential functions, the circumstances under which the job is performed (such as the level of supervision and interaction with coworkers or "vulnerable individuals"), and the environment in which the job's duties are performed (e.g., out of doors, in a private home, etc.).

    Interestingly, the EEOC has recommended that employers not ask about convictions on job applications, although there is no basis for concluding that just asking if an individual has been convicted of a crime would be illegal (so long as the information obtained is properly used in a manner that is relevant to the job in question).  The Guidance suggests that employers should wait and ask any questions about criminal convictions late in the selection process.  The rationale, according to the EEOC, "is that an employer is more likely to objectively assess the relevance of an applicant's conviction if it becomes known when the employer is already knowledgeable about the applicant's qualifications and experience."

    The Guidance also provides examples of "Employer Best Practices" which include:

    • Eliminate policies or practices that exclude people from employment based on any criminal record.
    • 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 particular positions.
    • Document the justification for the policy and procedures and the research done in drafting the policy.
    • 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.
    • Keep information about applicants' and employees' criminal records confidential. Only use it for the purpose for which it was intended.

    The new Guidance updates a policy issued in 1987, when Clarence Thomas, the Supreme Court Justice, was EEOC chairman. The EEOC stated then, as it does now, that blanket exclusions based on criminal records could unfairly hurt minority applicants because they have considerably higher arrest and conviction rates and because the criminal offenses might be from "long ago" and have little bearing on a current job.

    Employers should carefully evaluate their current practices in light of the newly issued Guidance and the accompanying Questions and Answers. At a minimum, companies must avoid blanket exclusions from employment based on applicants' criminal histories and should evaluate whether and for what positions a criminal record should disqualify an individual from consideration. If employers continue to conduct criminal background checks and to ask about convictions on employment applications, care must be taken to ensure that the use of the information is job related, considering the nature of the crime, the time elapsed since the conviction, and the job for which the individual is applying.