The Equal Employment Opportunity Commission (EEOC) issued an updated “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII” (Guidance). The EEOC voted 4-1 to approve the Guidance.
The EEOC previously issued three policy statements on this issue and the agency has investigated and decided charges from individuals challenging the discriminatory use of criminal history information under Title VII of the Civil Rights Act since at least 1969.
EEOC Guidance is not a federal law or regulation. However, it demonstrates the EEOC’s position on a particular issue and shows what the agency will be looking for when deciding to investigate an employment practice and whether to file charges. The EEOC has been looking at employer use of criminal history on a systemic basis nationwide.
Employers that use criminal background checks as a common employment practice and those with multiple hiring locations should review their job applications and policies and seek advice of legal counsel regarding how the Guidance may affect their operations. Larger employer operations result in a larger pool of job applicants and a higher likelihood of statistically significant trends.
Use of Criminal History Can Result in Discrimination
The Guidance discusses how an employer’s use of an individual’s criminal history in making employment decisions could violate Title VII’s prohibition against employment discrimination. For example:
- “A violation may occur when an employer treats criminal history information differently for different applicants or employees, based on their race or national origin (disparate treatment liability).”
- “An employer’s neutral policy (e.g., excluding applicants from employment based on certain criminal conduct) may disproportionately impact some individuals protected under Title VII, and may violate the law if not job related and consistent with business necessity (disparate impact liability).”
Job Related and Consistent with Business Necessity
An employer must demonstrate that any criminal history screening practice is job-related and consistent with business necessity. The Guidance provides that a policy or practice that excludes everyone with a criminal record from employment will not be job-related and consistent with a business necessity.
An employer can demonstrate that its criminal record exclusion policy meets the “job related and consistent with business necessity” standard by showing a “targeted screen” of applicants plus an “individualized assessment.”
A “targeted screen” must consider at least:
- The nature and gravity of the crime;
- The time elapsed since the offense; and
- The nature of the job.
The policy must then provide an opportunity for an “individualized assessment” for people excluded by the targeted screen.
An employer can also meet the standard by showing that the policy has been validated in accordance with the EEOC’s Uniform Guidelines on Employee Selection Procedures (if data or analysis exists that links criminal conduct to subsequent work performance or behaviors).
Employers take note: The EEOC believes the existence of such validation data is “rare,” so using this approach to defend a policy or practice may not succeed.
The individualized assessment of applicants is the most significant new development in the Guidance. An individualized assessment consists of:
- Notice to the individual that he/she has been screened out because of past criminal conduct;
- An opportunity for the individual to demonstrate that he/she should not be excluded due to the 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 exclusion of this individual is not job related and consistent with business necessity.
Note: Section V. B9 of the Guidance provides more information on how to conduct an individualized assessment.
The Guidance calls the individualized assessment a “best practice” that is not required in all circumstances. It is unclear, however, when it would not be required. The EEOC states: “Although Title VII does not require individualized assessment in all circumstances, the use of a screen that does not include individualized assessment is more likely to violate Title VII.”
Employers will need to request more information from the applicant who is excluded by a targeted screen. This puts an increased burden on employers and may pose practical or logistical difficulties.
Ban the Box?
Employers commonly use a box on employment applications asking if the applicant has ever been convicted of a crime. The EEOC did not categorically ban the use of this box, but the Guidance recommends that “employers not ask about convictions on job applications and that, if and when they make such inquiries, the inquires be limited to convictions for which exclusion would be job related for the position in question and consistent with business necessity.”
The rationale for not asking on the initial application form is that the employer is more likely to objectively assess the relevance of the conviction if it becomes known once the employer has already learned of the applicant’s qualifications and experience.
Most employers should not use a standard job application form that results in automatic disqualification. Instead, employers should ask about criminal history only when they can demonstrate that it is relevant to a specific job.
The Guidance distinguishes between arrests and convictions and specifically states that arrest records, standing alone, may not be used to deny an employment opportunity. An employer may make an employment decision based on the conduct underlying the arrest if the conduct makes the individual unfit for the position.
The Guidance does not distinguish between arrests that involve pending charges and arrests from the past with no prosecution or conviction. California law prohibits employers from asking job applicants to disclose information about an arrest or detention not resulting in conviction, but employers can ask employees and applicants about any arrest for which the employee or applicant is out on bail or out on his/her own recognizance pending trial.
The EEOC specifically mentioned best practices in its Guidance:
- Eliminate policies and practices that completely exclude all applicants from employment based on criminal records.
- Develop narrowly tailored policies and practices for screening applicants and employees for criminal conduct:
- Identify essential job requirements and the circumstances under which they are performed.
- Determine specific criminal offenses that may demonstrate unfitness based on all available evidence.
- Determine duration of exclusion for criminal conduct based on all available evidence.
- Document the justification for your policy and procedure. Keep notes of consultations and research considered in crafting the policy.
- Include an individualized assessment process.
- When asking questions about criminal records, limit inquiries to those that are job-related and consistent with business necessity.
- Train managers, hiring officials and decision makers on the use of criminal history records.
- Keep information about criminal records confidential.
Finally, employers who must conduct criminal background checks to comply with California law should not stop doing so and should consult with legal counsel. There are issues of pre-emption of state law that require advice of counsel.