The U. S. Equal Employment Opportunity Commission (EEOC) issued Enforcement Guidance (Guidance) on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act (Title VII). Employers need to revise their use of criminal background checks in light of this guidance.
Background. Ninety percent of employers perform criminal background checks on applicants. The reasons asserted for using criminal background information are to prevent theft or fraud, workplace violence and potential liability for negligent hiring or to comply with state and local laws.
Having a criminal record is not a protected basis in Title VII, but liability can arise for employers from two different theories: “disparate treatment” or “disparate impact.” Disparate treatment occurs when an employer treats a person in a protected category differently than someone who is not in that same category. Disparate impact liability arises when an employer maintains an apparently neutral policy or practice that has the effect of disproportionately screening out a group protected by Title VII and the employer fails to demonstrate that the policy or practice is job-related. Employers should avoid policies or practices that could violate Title VII under either of these theories. This article outlines seven tips for employers based on the EEOC’s Guidance.
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Comply With Applicable Laws. Some states, including California, Connecticut, Hawaii, Massachusetts and New Mexico, have laws that restrict or prohibit the use of criminal background checks. Conversely, others require background checks. For example, a criminal record may result in denial of a federal security clearance, a prerequisite for some jobs with the federal government and federal contractors. Similarly, bank, educational and port employees can be denied employment based on their conviction records.
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Do Not Use A Blanket “Any Conviction” Standard. The EEOC’s position is that a blanket policy denying employment to all applicants with criminal conviction records violates Title VII.
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Do Not Consider Arrest Record. The EEOC’s position is that using arrest records has a disparate impact on African Americans and Hispanics. Thus, employers should not exclude applicants based on an arrest record.
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Revise Inquiries On Your Employment Application. The guidance discourages employers from asking about criminal convictions on job applications. If an employer chooses to make inquiries about conviction records, it should include the following disclaimer: “Answering ‘yes’ to any of these questions does not constitute an automatic bar to employment. Among other things, we will consider the nature and gravity of the offense or conduct; the time that passed since the offense or conduct and/or completion of the sentence; and the nature of the job you are seeking. If you answer ‘yes’ to any of the following questions, be sure to provide an explanation.”
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Assess Each Person’s Individual Situation. Before disqualifying any applicant based on criminal history, the EEOC suggests that employers consider:
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the circumstances surrounding the offense
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the number of offenses for which the individual was convicted
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age at the time of conviction
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evidence that the individual performed the same type of work, post-conviction, with no incidents of criminal conduct
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the length and consistency of employment history before and after the offense or conduct
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rehabilitation efforts, e.g., education/training; employment and other information regarding fitness for the particular position
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whether the individual is bonded
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Develop A Written Policy For Conducting Criminal Background Checks. The EEOC recommends developing a written policy and procedure for screening applicants and employees for criminal conduct. This policy should:
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identify central job requirements and circumstances under which the job is performed
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state specific offenses that may demonstrate unfitness for performing such a job
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determine the duration of exclusions for criminal conduct based on available evidence
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justify the business reasons for the policy and the procedures
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Keep Information About Criminal Backgrounds Confidential. Employers that obtain background information on applicants and employees should keep that information confidential.
Conclusion
The EEOC’s guidance puts employers in a Catch-22: either the employer will hire someone who could do harm in the workplace or expose the employer to liability, or the employer can get into trouble for not complying with the EEOC’s guidance if it continues to require criminal background checks. The use of criminal background checks can be an effective risk management tool, however, they must be done carefully and in compliance with the EEOC’s guidance.
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D. Albert Brannen is a partner in the national law firm of Fisher & Phillips LLP, which represents employers in labor, employment, employee benefits, business immigration, workplace safety and other civil rights matters. He can be reached at dabrannen@laborlawyers.com or 404-240-4235.