EEOC to Employers: Don’t Use Criminal Records as a Basis for Discrimination

On April 25, 2012, the Equal Employment Opportunity Commission updated its policies on the use of arrest and conviction records when making employment decisions.

The updated policy is intended to provide employers with best practices for avoiding discrimination based on race or national origin when evaluating the criminal history of current and potential employees.

For your reference, some takeaways from the EEOC’s policy update:

1. Background checks are still permitted:

“The EEOC guidance doesn’t go as far as some has feared by banning background checks entirely but it still suggests a plan of action that will be onerous for many employers.” (EEOC Releases Important Guidance on Use of Criminal and Arrest Records By Employers by Pullman & Comley, LLC)

2. The guidance makes a clear distinction between an arrest and a conviction:

“The fact of an arrest does not establish that criminal conduct has occurred, and an exclusion based on an arrest, in itself, is not job related and consistent with business necessity. In contrast, a conviction record will usually serve as sufficient evidence that a person engaged in particular conduct. In certain circumstances, however, there may be reasons for an employer not to rely on the conviction record alone when making an employment decision.” (Remember that Guilty Plea in College? by Warner Norcross & Judd)

3. Blanket policies of not hiring people with criminal records should be changed:

“In general, the EEOC advises employers to eliminate policies or practices that ‘exclude people from employment based on any criminal record’ and to replace them with ‘narrowly tailored’ policies that provide for targeted, individualized screening of specific offenses based on a job’s essential requirements and actual duties.” (EEOC Releases Updated Guidance on Use of Conviction Records by Franczek Radelet P.C.)

4. Being arrested is only relevant if it makes the person unfit for the role:

“According to the Guidance, an employer may make an employment decision based on the conduct underlying an arrest if the conduct makes the individual unfit for the position. However, the employer should do this only after a thorough investigation of the facts, and the conduct must be relevant for employment purposes.” (EEOC Issues New Guidance Regarding the Use of Arrest and Criminal Records in Employment Decisions by Warner Norcross & Judd)

5. Even when an individual has been convicted, employers should use caution:

“…your policy should provide the opportunity for an individualized assessment. Relevant factors, according to the EEOC, include: 1) evidence that the individual performed the same type of work, post conviction, with the same or a different employer, with no known incidents of criminal conduct; 2) rehabilitation efforts, e.g., education or training; and 3) employment or character references and other information regarding fitness for the particular position.” (EEOC Issues New Guidance On Using Criminal Background Checks by Fisher & Phillips LLP)

6. According to the EEOC, the new rule trumps state law:

“If a state law prohibits employment of a person with a criminal arrest or conviction, the employer is still prohibited from applying that statutory exclusion unless it can show that it is job related and consistent with business necessity. For example, relying on a state law that prohibits a county from employing anyone with a criminal conviction would not protect the employer from an enforcement action.” (EEOC Updates Guidance on Use of Arrest and Conviction Records by Jackson Walker)

7. Complying with federal law to eliminate candidates is permitted:

“During the meeting, EEOC also made clear that compliance with another federal law, such as the FDIC Act, which requires banks to conduct criminal background checks on applicants and restricts their hire of individuals with certain conviction histories, is a defense to a claim of discrimination under Title VII. The Guidance also clarifies that compliance with federal statutes and regulations governing eligibility for occupational licenses and registration is also a defense to a Title VII claim.” (EEOC Issues New Guidance on Criminal Background Checks by Proskauer Rose LLP)

8. The EEOC is looking for ‘disparate treatment’ and ‘disparate impact’:

“Because having a criminal history is not a protected category under Title VII, an individual claiming that an employer’s use of criminal history is discriminatory must show either ‘disparate treatment’ – that the employer treated minorities with criminal histories less favorably than similarly situated non-minorities with comparable criminal histories – or disparate impact.” (EEOC Issues Updated Guidance on Employers’ Use of Criminal Records by Ford & Harrison LLP)

9. Employers that obtain criminal records are not automatically in violation:

“… employers should note that this Guidance does not stand for the proposition that the EEOC can just get a copy of your job application and automatically find you in violation of Title VII just because you have a ‘Have you ever been convicted of a crime’ or ‘arrested’ question on there. They still would have to show that these questions have created a disparate impact and that there was no job-related basis for your doing so.” (The EEOC’s Busy Week – A New Guidance Issued on Using Arrest and Conviction Records by Miller & Martin PLLC)

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