The Equal Employment Opportunity Commission has issued new guidance for employers regarding the use of arrest and criminal records in employment decisions. The Guidance is effective immediately.
Possession of a criminal record is not protected under Title VII of the Civil Rights Act. As a result, employers may require applicants and employees to provide information about arrests, convictions or incarcerations. However, employers are prohibited from discriminating against individuals because of their sex, race, color, religion, national origin or any other protected category. The EEOC’s Guidance comes after numerous studies which revealed that an employer’s use of an individual’s criminal history may discriminate against individuals based on race and national origin, specifically African Americans and Hispanics. As a result, the Guidance focuses on employment discrimination based on race and national origin.
According to the Guidance, to avoid discrimination, employers should ensure that their employment policies regarding criminal convictions are “job related and consistent with business necessity.” This means there must be some relationship between the employer’s policies and the successful performance of the job. To determine whether an employer’s exclusion of an applicant or employee based on criminal history is job related, the employer must consider:
- The nature and gravity of the offense
- The time that has passed since the offense
- The nature of the job held or sought
The Guidance clarifies the use of arrest records versus conviction records. Regarding arrests, the fact that an individual was arrested does not establish that he or she has actually engaged in criminal conduct; therefore, an exclusion based on an arrest alone is not job related and consistent with business necessity. According to the Guidance, an employer may make an employment decision based on the conduct underlying an arrest if the conduct makes the individual unfit for the position. However, the employer should do this only after a thorough investigation of the facts, and the conduct must be relevant for employment purposes. In contrast, the conviction of a crime will usually be sufficient evidence that a person engaged in criminal conduct. However, the Guidance recommends that employers should be cautious not to solely rely on conviction records when making an employment decision.
Because possession of a criminal record is not protected under Title VII, the EEOC will analyze whether employment discrimination occurred based on “disparate treatment” or “disparate impact.” The Guidance provides the following example of disparate treatment: “Title VII disparate treatment liability occurs where the evidence shows that a covered employer rejected an African American applicant based on his criminal record but hired a similarly situated White applicant with a comparable criminal record.” The EEOC will use the following evidence against employers to prove its disparate treatment of certain individuals:
- Biased statements that degrade a protected characteristic
- Inconsistent hiring practices for people who are members of a protected group
- Treatment of similarly situated individuals who are not a member of the protected group
- Matched-pair employment testing to reveal treatment of candidates
- Statistical evidence of individuals hired.
Disparate impact occurs where evidence shows that an employer’s policies or practices disproportionately screen out a Title VII protected group. For example, disparate impact occurs where employer’s criminal record policy disproportionately screens out African Americans or Hispanics. The EEOC will use the text of the policy or practice, the associated documentation of the policy, and information on how the policy or practice was implemented as evidence of disparate impact.
To avoid these situations, the Guidance provides best practices for employers who use criminal record information. Employers should:
- Eliminate policies or practices that exclude people from employment based on any criminal record
- Train managers, supervisors and decision-makers about Title VII and its prohibition on employment discrimination
- Narrowly tailor a policy that screens applicants and employees for criminal conduct to identify essential job requirements and determine specific offenses that would render the individual unfit for the job
- Limit the time an individual may be excluded from a position because he or she committed a crime
- Prepare a record of why it developed the policy
- Document the methods utilized to create the policy
A copy of the Guidance can be found here. If you have questions regarding the EEOC’s Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII or your criminal record policy, then please contact any member of the Labor and Employment Practice Group at the law firm of Warner Norcross & Judd..