The New EEOC Guidance Regarding Criminal Background Checks

On Wednesday, April 25, 2012, the Equal Employment Opportunity Community issued its long awaited Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act, updating and clarifying its prior guidance on the subject. The good news? Employers may continue to use criminal background checks as a screening tool for applicants and employees. However, employers are specifically discouraged from asking about a criminal record on the application and are encouraged to conduct an individualized assessment of the applicant/employee when job exclusion occurs because of a criminal record. Employers should review their policies to ensure compliance with the EEOC’s latest recommendations.

The new guidance contains a lengthy discussion of arrest and conviction statistics among the population, emphasizing that individuals in certain protected classes – African-American and Hispanic men in particular – are more likely to be adversely affected by an otherwise neutral criminal background check policy. Concerns about the disparate impact on these groups provides the foundation for the EEOC’s position on the use of and parameters for criminal background checks.

Many employers’ policies already utilize the factors articulated by the Eighth Circuit in Green v. v. Missouri Pacific Railroad, further developed by the Third Circuit in El v. Southeastern Pennsylvania Transportation Authority, and incorporated in the latest and prior EEOC guidance. The Green factors – the nature of the crime, the time elapsed, and the nature of the job – are used to determine whether an exclusion is job-related for the position in question and consistent with business necessity. In considering the nature of the offense, the EEOC suggests looking at the harm caused by the crime, the legal elements, and the severity. The EEOC offers no specific guidance on the appropriate time period, indicating that it depends on the facts and circumstances, but suggests that recidivism rates may provide guidance. For the nature of the job, the EEOC recommends looking at the essential functions and duties of the job and the environment in which it is performed.

According to the new guidance, “[t]o establish that a criminal conduct exclusion that has a disparate impact is job related and consistent with business necessity under Title VII, the employer needs to show that the policy operates to effectively link specific criminal conduct, and its dangers, with the risks inherent in the duties of a particular position.” The EEOC suggests that an employer can consistently meet this test by (a) validating the screen using the Uniform Guidelines on Employee Selection Procedures or (b) developing a targeted screen that takes into account the Green factors and then offers an opportunity for an individualized assessment. The individualized assessment gives the applicant/employee notice of the results and then an opportunity to offer additional information demonstrating why the exclusion should not apply.

According to the EEOC, the employer must have some basis for drawing a connection between the crime and its importance to the job, such as “fact-based evidence, legal requirements, and/or relevant and available studies.” By way of example, a policy that excludes an applicant convicted of theft or dishonesty for a position in which the applicant would have access to personal financial information or money where the conviction occurred in the four years prior to the application may be an appropriate targeted exclusion if the employer can explain, with reference to some fact or study, why the policy was adopted. The examples the EEOC gives include national criminal data and recidivism research.

Also of note in the guidance:

• Title VII does not preempt federal laws that prohibit employment of individuals with specific convictions in certain industries or positions in the public and private sector.
• State and local laws are preempted by Title VII if they result in an unlawful employment practice. This means that following a state or local law is not a defense – the employer must still show job relatedness and business necessity.

The EEOC offers a number of “Employer Best Practices,” including the elimination of policies that exclude individuals because of any criminal record, the development of narrow policies and practices that closely correlate the essential job requirements with the specific offense, documented justification for the policy procedure, and training of managers.

For a related article on the new EEOC Guidance, including commentary by Gibbons Employment & Labor Law Director, Susan L. Nardone, click here. To discuss any of your company’s employment or e-discovery needs, contact any attorney in the Gibbons Employment & Labor Law Department.