New EEOC Guidelines: What Employers Need to Know about the

Use of Criminal Records in the Hiring Process

Presenter: Sally Griffith Cimini, Esq. SPHR

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OVERVIEW OF EEOC GUIDANCE

Recently the EEOC consolidated and updated its guidance on employer’s consideration of an individual’s criminal history in making employment decisions.

The EEOC is of the position that consideration of an individual’s criminal history may violate the prohibition against employment discrimination under Title VII of the Civil Rights Act of 1964, as amended.

The Guidance focuses on employment discrimination based on race or national origin and also highlights the important distinction between arrest records, which do not indicate the occurrence of criminal conduct, and conviction records.

However, if the conduct surrounding the criminal record is related to the nature of the job, an employer may consider this information as it may indicate the potential employee is unfit for the position.

The Guidance discusses disparate treatment and disparate impact analysis under Title VII: Disparate treatment liability occurs when an employer treats criminal history

differently based on race or national origin. Disparate impact occurs when a seemingly neutral policy adversely impacts some

individuals protected under Title VII.

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OVERVIEW OF EEOC GUIDANCE

The EEOC has found that national data indicates criminal record exclusions have a disparate impact based on race and national origin. The EEOC noted that arrest and incarceration rates are particularly high for African American

and Hispanic men.

In addition, recent studies have also found that a significant number of state and federal criminal record databases include incomplete criminal records.

The Guidance sets forth steps that will allow employers to consistently meet the “job related and consistently with business necessity” test when using criminal history background checks when making employment decisions.

Compliance with other federal laws/regulations in conflict with Title VII is a defense to a discrimination charge; depending on the circumstances, a state or municipal law may provide a defense or may be preempted.

The EEOC discusses best practices which employers may take in order to adhere to Title VII of the Civil Rights Act of 1964, and on what grounds the employer must prove that an individual is unfit for employment based on the finding of a criminal record.

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DISPARATE TREATMENT: DISCRIMINATION AND CRIMINAL RECORDS

Employers violate Title VII when they rely on a criminal record to deny employment based on race, color, religion, sex, or national origin.

Two analytical frameworks are Disparate Treatment and Disparate Impact

Disparate Treatment occurs under the EEOC’s Guidance when the criminal records of one applicant or employee are treated or considered differently than criminal records of another applicant or employee because of race, national origin, or other protected basis. Evidence that establishes disparate treatment includes:

Biased statements by employer, inconsistencies in the hiring process, similarly situated comparators, employment testing, and statistical evidence that would determine if the employer uses criminal history to an unfair disadvantage for a protected group.

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DISPARATE IMPACT ON CONSIDERATION FOR EMPLOYMENT

Disparate Impact occurs when a seemingly neutral policy adversely impacts some individuals protected under Title VII.

When a plaintiff can demonstrate that an employer’s neutral policy has the effect of disproportionately screening out a Title VII-protected group, that employer violates Title VII. Employer does not effectively demonstrate that the criminal offense

makes the applicant or employee unqualified for the job. This addresses practices that are fair in form but discriminatory in

practice.

Determining Disparate Impact Must identify the particular policy or practice that causes disparate

impact and how it was implemented. Relevant information also includes which offenses were reported to the employer, whether convictions were reported, and how much time has elapsed since the VII-protected groups are not arrested and convicted at disproportionately higher rates in the employer’s area.

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DISPARATE IMPACT: DISCRIMINATION AND CRIMINAL RECORDS

EEOC’s study of Criminal Records According to an EEOC study, nationally, African Americans and Hispanics are

arrested at a rate that is 2-3 times greater than their proportion of the general population.

According to current statistics, about 1 in 17 White men are expected to serve time in prison during their lifetime. For Hispanic men, this rate increases to 1 in 6, and for African American men, 1 in 3.

Given these statistics, the EEOC’s Guidance states that a blanket policy barring individuals with criminal records from employment will have a disproportionate impact on these groups. However, employers may show their policies do not cause a disparate impact by

providing regional statistics demonstrating that Title VII-protected groups are not arrested and convicted at disproportionately higher rates in the employer’s area. Such evidence is evaluated on a case-by-case basis.

The EEOC also has stated that the employer’s reputation will be considered in determining whether an employer violates Title VII.

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JOB IN QUESTION: RELATIONSHIP WITH BUSINESS NECESSITY

If an employee can demonstrate that a policy of excluding applicants/employees for a given position based upon a criminal record has a disparate impact on a protected class, the burden shifts to the employer to demonstrate: That the charge indicated in the applicant’s criminal history is job-related for the

position in question and consistent with business necessity.

The Eighth Circuit identifies 3 relevant factors for assessing whether exclusion from a job is appropriate based on a criminal record (i.e. job-related for the position in question and consistent with business necessity): The nature and gravity of the offense or conduct; The time that has passed since the offense or conduct and/or completion of the

sentence; and The nature of the job held or sought.

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JOB IN QUESTION: RELATIONSHIP WITH BUSINESS NECESSITY

Example: El v. Southeastern Pennsylvania Transportation Authority Douglas El, a 55 year-old African American trainee, challenged SEPTA’s policy of

excluding everyone ever convicted of a violent crime. Was terminated from employment after SEPTA learned of his conviction of 2nd

degree murder for a gang fight 40 years earlier when he was 15 years old. Though the Third Circuit affirmed summary judgment for SEPTA, they concluded

that under Title VII, employers must distinguish between applicants who pose a high risk and those who do not based on the nature of their criminal record.

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CONSIDERATIONS FOR CRIMINAL RECORD EXCLUSION POLICIES: ARRESTS VS. CONVICTIONS

Arrest Records are not proof of criminal conduct, therefore an exclusion based on an arrest is not in accordance with Title VII according to the Guidance.

However, the EEOC does state that an employer may exclude an applicant or employee based on the conduct underlying the arrest if the conduct makes the individual unfit for the given position. Example: Andrew, A Latino man who is assistant principal of an Elementary School, is

accused of touching several ten and eleven year-old girls inappropriately. Although he has not been convicted, the school has a policy in which case any employee whom the school believes has engaged in conduct that negatively impacts the health or safety of the students will be suspended or terminated. Andrew challenges the policy. He says that he is the victim of discrimination because he has not

been convicted of any crime. However, the EEOC does not find that discrimination occurred, because the exclusion is made on the basis of conduct, not the arrest.

The EEOC’s Guidance states that Conviction Records are sufficient evidence that a person engaged in particular conduct. However, the EEOC warns that it is possible a database may fail to acknowledge an

expunged conviction or may report a misdemeanor as a felony.

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CONSIDERATIONS FOR CRIMINAL RECORD EXCLUSION POLICIES: ARRESTS VS. CONVICTIONS

Inquiring About Convictions Some states require employers to wait until late in the application

process to ask about convictions. The employer is more likely to objectively assess the relevance of an applicant’s

criminal record if they are already familiar with the applicant’s job qualification.

The EEOC recommends employers limit their inquiries regarding convictions to convictions that would be related to the job or position in question.

IMPORTANT NOTE: While the EEOC’s Guidance provides direction for employers to follow

when considering criminal records in making employment decisions, state laws, if they are more protective of employees’ rights, are still applicable and must be considered. However, they may be preempted if they “purport to require or permit the doing of any act which would be an unlawful employment practice under Title VII.”

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EMPLOYER’S RESPONSIBILITY

In order to justify the screening out of an applicant or employee based upon a criminal record, the Guidance provides that employers are entitled to the following defense: Employers validate criminal conduct screens for the position in question per the

Uniform Guidelines on Employee Selection Procedures standards, or Employers develop a targeted screen considering the nature of the crime, the time

elapsed since the conviction, and the nature of the job (the three Green Factors) and then provides an opportunity for an individualized assessment for individuals excluded by the screen to determine whether the policy as applied is job related and consistent with business necessity. The individualized assessment would consist of:

Notice to the individual that he or she has been screened out because of a criminal conviction; An opportunity for the individual to demonstrate that the exclusion should not be applied due to

his or her particular circumstances; and Consideration by the employer as to whether the additional information provided by the individual

warrants an exception to the exclusion and shows that the policy as applied is not job related and consistent with business necessity.

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EMPLOYER’S RESPONSIBILITY

The EEOC states that an individualized assessment is not necessarily required by Title VII in all circumstances, but the EEOC further indicates that employers can avoid liability by conducting targeted criminal screenings under the Green factors and making employment decisions regarding conviction records on a case-by-case basis. Relevant individualized evidence includes:

Facts or circumstances surrounding the offense or conduct Number of convicted offenses Older age at time of conviction or release from prison Evidence that individual held a similar position, post conviction, without known incident of

criminal conduct. Length and consistency of employment history before and after the offense or conduct Rehabilitation efforts Employment or character references regarding fitness for position Whether individual is bonded

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THE GREEN FACTORS - EXPLAINED

The Nature and Gravity of the Offense or Conduct When determining the risk of hiring an individual based on his or her criminal

conviction, an employer must consider the gravity and nature of the offense and how it pertains to the position sought.

The employer may consider harm caused by the crime, such as theft or property loss.

Legal elements are also relevant (i.e. felony theft may involve deception, threat, or intimidation).

Time Passed Since the Offense, Conduct, and/or Completion of Sentence Permanent exclusions not considered business necessity. Duration of an exclusion depends on each case’s particular circumstances.

Nature of the Job Held or Sought The job title as well as the job’s duties and essential functions, and circumstances

under which the job is performed. The job environment is also considered. In order to demonstrate that its policy is job related an employer must link criminal

conduct with job nature, and determine that the applicant or employee is unfit based on their criminal record.

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STATE AND LOCAL PROHIBITIONS OR RESTRICTIONS ON INDIVIDUALS WITH A CRIMINAL RECORD

These prohibitions are unlike federal restrictions in that they are preempted by Title VII if they “purport to require or permit the doing of any act which would be an unlawful employment practice.”

If an employer excludes an applicant for a reason that is not job-related, even though it complies with a state or local regulation, the employer is not exempt from Title VII liability. Example: an individual who is African American applies for a job in a Pre-School

which is in a state that restricts individuals with criminal records from working in schools. After learning that the man pled guilty to a charge of indecent exposure, the employer rejects him for the position. Although the man files a Title VII disparate impact claim, the EEOC would not find that discrimination occurred because the regulation addresses serious safety risks for the protection of children.

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STATE AND LOCAL PROHIBITIONS OR RESTRICTIONS ON INDIVIDUALS WITH A CRIMINAL RECORD

The EEOC also provides employers with a shield for liability if compliance with other federal laws and/or regulations that conflict with Title VII would otherwise result in action which is discrimination under the new laws. Therefore, if an employer is in an industry subject to federal requirements that prohibit individuals

with certain criminal records from holding particular positions, the guidelines state that compliance with those federal laws and/or regulations is a defense to a charge of discrimination.

IMPORTANT NOTE: State and local laws or regulations are preempted by Title VII only if they purport to

require or permit the doing of any act which would be an unlawful employment practice under Title VII.

While the EEOC’s Guidance provides direction for employers to follow when considering criminal records in making employment decisions, state laws, if they are more protective of employees’ rights, are still applicable and must be considered.

However, the Guidance states that if an employer’s exclusionary policy or practice is not job related and consistent with business necessity, the fact that it was adopted to comply with a state or local law or regulation does not shield the employer from Title VII liability. Example: an individual who is African American applies for a job in a Pre-School which is in

a state that restricts individuals with criminal records from working in schools. After learning that the man pled guilty to a charge of indecent exposure, the employer rejects him for the position. Although the man files a Title VII disparate impact claim, the EEOC would not find that discrimination occurred because the regulation addresses serious safety risks for the protection of children.

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TIPS FOR EMPLOYERS TO AVOID LIABILITY

The EEOC’s new guidelines provide some best practice tips to help employers avoid liability under its new guidelines. Employers should eliminate blanket policies or practices that exclude individuals from

employment based on any criminal record. Employers can avoid liability by training managers, hiring officials, and decision

makers about Title VII and its prohibition on employment discrimination. Employers can develop a narrowly tailored written policy and procedure for screening

applicants and employees for criminal conduct. This policy should: Identify essential job requirements and the actual circumstances under which the jobs are

performed. Determine the specific offenses that may demonstrate unfitness for performing such jobs. Determine the duration of exclusions for criminal conduct based on all available evidence. Record the justification for the policy and procedures. Note and keep a record of consultations and research considered in crafting the policy and

procedures. Train managers, hiring officials, and decision makers on how to implement the policy and

procedures consistent with Title VII.

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TIPS FOR EMPLOYERS TO AVOID LIABILITY

Cont. When asking questions about criminal records, employers should limit inquiries to

records for which exclusion would be job related for the position in question and consistent with business necessity.

Employers should also keep information about applicants’ and employees’ criminal records confidential. Only use it for the purpose for which it was intended.

Do not ask individuals to disclose any criminal conviction on employment applications. If employers choose to include this information on its applications, it should limit inquiries to felonies.

QUICK SUMMARY

When it comes to criminal records – do an individualized

assessment!

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