EEOC Issues Guidance on Use of Arrest and Conviction Records
- By Your mom
- •
- 05 May, 2012
On April 25, 2012, the 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 EEOC also provided a Q&A
document that provides a good overview of the more lengthy Guidance.
Employers have always risked violating Title VII when using criminal records to screen
applicants for hire or internal promotion. Even in the face of such risk, over 90% of employers
use criminal background checks for some applicants or employees, and over 70% use them to
screen all applicants, according to a recent SHRM study. The risk arises under the “disparate
impact theory.”
Under this theory, if an employer’s neutral employment policy, screening applicants for
criminal backgrounds, results in a disproportionate number of minorities being eliminated from
employment consideration, the policy violates Title VII, unless the company can prove the
policy is job related and consistent with business necessity. In addition, employers must make
sure they do not treat members of one race, color, religion, sex or national origin differently than
members of any other group based on the member’s criminal background. This would trigger a
“disparate treatment” claim under Title VII.
According to the Guidance, a policy that automatically excludes everyone with a criminal
record will not be job related and consistent with business necessity, unless such exclusion is
required by federal law. Instead, the EEOC suggests employers develop a screening process that
considers the nature of the crime, the time elapsed, and the nature of the job. It should then
undertake an individualized assessment of those identified in the initial screen to determine if the
person should be excluded based on job relatedness and business necessity. While such
individualized assessment is not required, the EEOC states the use of a screen without an
individualized assessment is more likely to violate Title VII.
Employers should consider adopting some best practices outlined by the EEOC to avoid
running afoul of the law including:
-Eliminate policies or practices that exclude people from employment based on any
criminal record.
-Train managers about these requirements.
-Develop narrowly tailored written policies and procedures for screening applicants and
employees for criminal conduct.
-Identify essential job requirements and the actual circumstances under which the jobs are
performed.
-Determine the specific offenses that may demonstrate unfitness for performing a
particular job.
-Determine the duration of exclusions for criminal conduct.
-Include an individualized assessment.
-Record the justification for any exclusion.
-Limit inquiries to criminal records that are job related and consistent with business
necessity.
-Keep criminal record information confidential and only use it for the purpose for which
it was intended.
Connecticut employers should also be aware of a state statute that prohibits them from
requesting arrest, criminal charge, or conviction information in cases where the records have
been “erased” or a pardon has been granted. Conn. Gen. Stat. § 31-51i.
Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment
Decisions Under Title VII of the Civil Rights Act of 1964. The EEOC also provided a Q&A
document that provides a good overview of the more lengthy Guidance.
Employers have always risked violating Title VII when using criminal records to screen
applicants for hire or internal promotion. Even in the face of such risk, over 90% of employers
use criminal background checks for some applicants or employees, and over 70% use them to
screen all applicants, according to a recent SHRM study. The risk arises under the “disparate
impact theory.”
Under this theory, if an employer’s neutral employment policy, screening applicants for
criminal backgrounds, results in a disproportionate number of minorities being eliminated from
employment consideration, the policy violates Title VII, unless the company can prove the
policy is job related and consistent with business necessity. In addition, employers must make
sure they do not treat members of one race, color, religion, sex or national origin differently than
members of any other group based on the member’s criminal background. This would trigger a
“disparate treatment” claim under Title VII.
According to the Guidance, a policy that automatically excludes everyone with a criminal
record will not be job related and consistent with business necessity, unless such exclusion is
required by federal law. Instead, the EEOC suggests employers develop a screening process that
considers the nature of the crime, the time elapsed, and the nature of the job. It should then
undertake an individualized assessment of those identified in the initial screen to determine if the
person should be excluded based on job relatedness and business necessity. While such
individualized assessment is not required, the EEOC states the use of a screen without an
individualized assessment is more likely to violate Title VII.
Employers should consider adopting some best practices outlined by the EEOC to avoid
running afoul of the law including:
-Eliminate policies or practices that exclude people from employment based on any
criminal record.
-Train managers about these requirements.
-Develop narrowly tailored written policies and procedures for screening applicants and
employees for criminal conduct.
-Identify essential job requirements and the actual circumstances under which the jobs are
performed.
-Determine the specific offenses that may demonstrate unfitness for performing a
particular job.
-Determine the duration of exclusions for criminal conduct.
-Include an individualized assessment.
-Record the justification for any exclusion.
-Limit inquiries to criminal records that are job related and consistent with business
necessity.
-Keep criminal record information confidential and only use it for the purpose for which
it was intended.
Connecticut employers should also be aware of a state statute that prohibits them from
requesting arrest, criminal charge, or conviction information in cases where the records have
been “erased” or a pardon has been granted. Conn. Gen. Stat. § 31-51i.
