EEOC Issues Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions

July 31, 2012

By: Mark A. Moldenhauer

On April 25, 2012, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued its Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964.  The guidance follows prior statements by the EEOC concerning employers’ use of arrest and conviction information when making employment decisions, including whether to hire, retain, or promote individuals.  The EEOC has also published additional information concerning its new enforcement guidance in a Question and Answer-form summary.

Effect of the EEOC's Guidance

Employers can rest assured that the EEOC’s guidance does not make it a per se violation of Title VII to consider criminal history information.  It does, however, send a clear signal that the agency intends to scrutinize employment decisions that are based on an individual’s criminal past.  The EEOC stresses that criminal history information may be relevant to both “disparate treatment” claims (where people with the same criminal history are treated differently because of a legally protected characteristic) and “disparate impact” claims (where an employer’s facially neutral policy has a disproportionately adverse impact on a specific protected group).

In the disparate impact context, an employer can avoid liability by showing that the policy at issue is job related for the position and consistent with business necessity.  Under the new EEOC guidance, however, an employer will not typically satisfy this showing by merely tying its policy of considering prior criminal backgrounds to its general concern for property or safety.  Rather, employers are now expected to conduct a multi-factor analysis to confirm that the underlying policy is appropriately applied to a specific individual.

"Targeted Screens" and "Individualized Assessments"

In its guidance, the EEOC makes clear its position that a policy excluding everyone with a criminal background from employment will violate Title VII because it is not job related and consistent with business necessity.  The EEOC states that, at the very least, a policy must be rooted in a genuine nexus between a position and a particular crime.  To be valid, such a “targeted screen” must take into account the nature of the crime, the time elapsed, and the nature of the job in question.  The EEOC also emphasizes, however, that a targeted screen alone may be inadequate to avoid a disparate impact claim in many situations.  It therefore suggests that employers also conduct what it terms an “individualized assessment.”

To complete an individualized assessment in accordance with the new EEOC guidance, an employer must:  (1) notify the individual that he or she has been targeted for exclusion because of past criminal conduct; (2) give the individual an opportunity to explain why he or she should not be excluded; and (3) consider any information supplied by the individual to assess whether the practice or policy, as applied, is job related and consistent with business necessity.  The EEOC lists several examples of potentially relevant information that should be considered during the individualized assessment, including:  possible inaccuracies in the criminal history report; the applicant/employee’s age at the time of the offense; the number of offenses committed; whether similar work has been performed without incident; the applicant/employee’s employment history; rehabilitation efforts; and employment or character references.

Looking Ahead

Although the EEOC’s new guidance does not go so far as to prohibit employers from considering an individual’s criminal history when making employment decisions, it should serve as a reminder that this screening method is rife with potential legal pitfalls.  The EEOC’s emphasis on the national conviction rates for certain minority groups suggests that it is predisposed to litigating claims under a disparate impact theory.  The EEOC will consider whether the employer followed the several steps described in the new guidance to assess whether a screening policy is truly job related for a particular position and consistent with business necessity.

In addition, it is important for employers to remember that several states and municipalities have passed laws to prohibit discrimination on the basis of an individual’s criminal history.  For instance, the New York Human Rights Law and Corrections Law make it unlawful to base employment decisions on prior arrests or criminal convictions.  An exception exists that allows an employer to deny employment when the underlying conviction directly relates to the job or when employment would pose an unreasonable risk to property or the safety or welfare of specific individuals or the general public.  Before relying on this exception, however, employers must consider a variety of factors, including:

• the public policy of New York State to encourage employment of persons with criminal records;
• the specific duties and responsibilities of the position;
• the bearing the underlying offense will have on the person's fitness or ability to perform those duties and responsibilities;
• the time elapsed;
• the age of the person when the offense was committed;
• the seriousness of the offense;
• any information concerning the person's rehabilitation and good conduct; and
• the legitimate interest of the employer in protecting property or safety or welfare of individuals or the public.

By conducting this analysis, New York employers will also very likely be able to satisfy the EEOC’s expectations as stated in its new guidance.  To better insure compliance, however, it is strongly recommended that employers contact labor and employment counsel when assessing internal policies relating to the use of criminal history information in connection with employment decisions.