EEOC Guidance

Using Criminal Records in Employment Decisions

Ground Rules• We want this to be a dialogue.

• If you have not already, please mute your phone.

• If you have a question, please un-mute your phone, identify yourself and ask your question.

• We will have a general Q&A session at the end.

FYI•The first 9 slides are “Background”.

•It’s important to know how we got here because the new Guidance builds on previous EEOC rules.

Background• The Fair Credit Reporting Act (FCRA) is the primary “rule book” for background checks - enforced by the FTC.

• The Equal Employment Opportunity Commission (EEOC) is involved only when background checks and Title VII of The Civil Rights Act of 1964 intersect i.e. discrimination against protected classes (race, color, sex, religion or national origin).

• This involvement manifests itself primarily in the use of “non-conviction data” aka “arrest records” in background check reports (1990).

More background• The original1990 EEOC opinion is based on a 1987 DOJ report that stated minorities are arrested “disproportionately” more often that majorities. Since a person is presumed to be innocent, an arrest does not constitute “guilt” and therefore unfair to minorities.

• This effectively bars the use and receipt of arrest records in background checks even though the FCRA says arrest records may be used unless the information is older than seven years.

• Until this new Guidance, that was

It’s About “behavior”• A “purist” will tell you that arrest records may be used if the underlying behavior poses an unreasonable risk to the employer.

✴An applicant is arrested repeatedly for domestic violence but never convicted; a review of the cases reveals a pattern of violent behavior that poses an unreasonable risk to the workplace.

✴The EEOC says you have to review the evidence yourself. This is a very high standard for the employer to meet.

The heart of the matter• The EEOC enforces Title VII.

• A person with a criminal record is not a “protected class” under Title VII.

• “Therefore, whether a covered employer’s reliance on a criminal record to deny employment violates Title VII depends on whether a claim of employment discrimination is based on race, color, religion, sex or national origin.”

• Final decision will be based on finding of “Disparate Impact” and “Disparate Treatment”

Disparate impact & treatment• Disparate Treatment occurs when a protected

applicant can demonstrate he/she was treated “differently”by an employer

✴Example: Two applicants with similar backgrounds including criminal histories aren’t given equal consideration because of “racial or ethnic animosity”.

• Disparate Impact occurs when a protected applicant can demonstrate that policies/practices have the effect of disproportionately screening out protected groups.

✴Example: An employer historically reserves certain jobs or positions in their organization for one protected class vs. another.

practical implications• After the plaintiff establishes disparate impact or treatment, Title VII shifts the burden of production and persuasion to the employer to “demonstrate that the challenged practice is job related and consistent with business necessity.”

• Even if an employer successfully demonstrates that its policies are job related, a plaintiff may prevail by demonstrating that there is a less discriminatory “alternative employment practice” that serves the employer’s goals. (Brown v Fort Worth Bank & Trust - 1988)

Exceptions• Notes

✴Compliance with Federal laws that conflict with Title VII are a defense to the charge of discrimination.

✴State and local laws/regulations are preempted by Title VII if they require or permit an unlawful employment practice.

The preceding rule have been in place since 1990.

So What has changed?•It used to be about arrest records. It now includes

convictions.

•The new Guidance calls out a specific behavior it believes contributes to discrimination under Title VII:

✴“Blanket” disqualification policies that exclude anyone with a criminal record (any criminal record).

✴The use of general questions related to criminal histories on applications i.e. “Have you ever been convicted...”

Highlights• Again, “National data supports a finding that criminal record exclusions have a disparate impact based on race and national origin.”

• Two circumstances where EEOC believes their use are acceptable:

1. The employer validates the criminal conduct exclusion using data that adheres to the “Uniform Guidelines on Employee Selection Procedures” (link on our website) - Note: This is extremely difficult.

Exceptions2. The employer develops a targeted screen that considers, at least, the nature of the crime, the time elapsed and the nature of the job (“Green Rules” from Green v Missouri Pacific Railroad).

✴Additionally, the employer then provides the applicant an opportunity for an individualized assessment (interview)... to determine if the policy as applied is job related and consistent with business necessity.”

What’s a company to do?

• From “EEOC Best Practices”

✴ Eliminate policies/practices that exclude people based on any criminal record.

✴ Document that you’ve trained your managers about Title VII

What’s a company to do?✴Develop a written policy/procedure for screening applicants for criminal records. Include:

★ Essential job requirements of each position

★ Specific offenses that demonstrate “unfitness”

★ Duration of exclusions aka “point of redemption”.

What’s a company to do?

• Include an individual assessment or review of each marginal case.

• Document any research or consultations used to craft the new policy.

• When asking questions about criminal records, limit inquiries to records that are job relevant.

how do i do this?1. Make a list of all job classifications.

2. Determine what types/levels of crimes will disqualify an applicant i.e. violence, theft sex, drugs, etc..

3. Determine what time limit(s) are relevant for each type. Note: Some crimes can be “forever”.

4. Conduct assessments for marginal applicants.

5. Provide/document training for your hiring managers.

It might Look like thisJob

ClassViolenc

eDrugs Theft Sex Driving

Office Yes Yes Yes Yes No

Field Yes Yes Yes Yes Yes

Supervisor Yes Yes Yes Yes No

Manager Yes Yes Yes Yes Yes

Disqualifying convictions

Offense MisdemeanorsWithin Past 5 Years

Felonies Within Past 7 Years

ViolenceAssault, Domestic Violence, BatteryTerroristic ThreatsPossession of a Deadly Weapon

Aggravated AssaultMurder/Manslaughter

Drugs 2 or more Possession of MariijuanaPossession of Controlled Substance Sched I, II, IIIPossession with Intent to Distribute

Theft Theft by Check $50-$500Theft $50-$500

Grand Theft AutoTheft $500 - $50,000

Sex N/A

Aggravated Sexual AssaultRegistered Sex Offender (Previous)Registered Sex Offender (Current) - (No Limit)

Driving 3 or more ticketsDWI - 1st or 2nd

DWI 3rd or More

How to implement

Offense Company Policy/Practice

Miscellaneous

Felony conviction within past seven years - Aggravated

AssaultDisqualification

Conviction - Possession of Marijuana six years ago.

Conduct Assessment; Review and confirm Applicant’s

version of events

DWI (1st) six years ago

If a driver, conduct assessment and confirm facts; if non-driver, not job relevant; should be hired

Consider adding consequences to 2nd DWI to employment agreement

This isn’t one size fits all

• Each industry will have its “hot buttons”.

• Trade associations may create organized response for their industry.

• Consult your legal counsel

changing the question

Option 1Change the question to address convictions or pending charges related to the job i.e. theft,

violence, drugs, etc.

Option 2Remove the question from your application

and present it later in the process; prepare a brief questionnaire with more detailed

questions

Let’s Review

1 Identify Your Positions By Levels

2Determine Your Risk(s) by Job i.e Theft,

Violence, etc.

3Identify Disqualifying Offenses with Time

Limits

4Put a Review Process in Place and

Document

Review (cont)

5Eliminate all policy language that is

“absolute”

6Reformat the “Question” about criminal

records; the EEOC recommends moving it deeper into the process

don’t procrastinate

• There are currently 112 open cases regarding the use of criminal records with the EEOC.

• Plaintiff Attorneys will “smell blood” in the water.

Watch for updates on our Client Exchange.

Questions and General Discussion?