Employers Wrestle with EEOC Guidance on Use of Criminal Background Information

In late spring of 2012 the United States Equal Employment Opportunity Commission (EEOC) issued enforcement guidance regarding employers’ use of criminal background information in making employment-related decisions. While the EEOC Guidance does not significantly alter the framework and legal standards under which the courts determine whether an employer’s use of criminal background information violates Title VII of the Civil Rights Act of 1964 (Title VII), the guidelines do elaborate and update previous EEOC comments on this issue.

Statistics show that as many as 92% of employers utilize some form of criminal background check to determine suitability for employment. Statistically, because African Americans and Hispanics are arrested and incarcerated at much greater rates than non-minorities, the EEOC has long taken the position that an employer’s use of the criminal background history in making employment decisions may constitute discrimination on the basis of race or national origin in violation of Title VII unless certain standards are followed. Discrimination claims follow one or two theories: disparate treatment or disparate impact. Under a disparate treatment claim, an employer violates Title VII by treating the person’s criminal history differently in light of his or her race or national origin. For example, allowing a Caucasian candidate to explain his criminal violation while denying that same opportunity to a minority. Under the disparate impact theory, the employer’s blanket application of a facially neutral policy or practice by disqualifying anyone with a criminal history has a disparate impact by screening out protected group applicants unless the employer is to demonstrate that the policy or practice is job related or the employer can show that regional data or its own applicant data rebuts the statistical impact cited nationally.

The EEOC has always drawn a sharp distinction between arrests and convictions as a conviction is conclusive evidence of criminal conduct while an arrest does not establish that criminal behavior actually exists. The EEOC is also concerned that certain databases maintained by state and federal investigative agencies may contain inaccurate information, such as failure to report the ultimate outcome of a charge or whether the record has been expunged.

In order for an employer to satisfy the job-related business necessity burden, it must show that any criminal conduct exclusion “operates to effectively link specific criminal conduct, and its dangers, with the risks inherent in the duties of a particular position.” The EEOC Uniform Guidelines on employee selection establish two ways an employer can satisfy the test. First, by validating its criminal conduct screen per the Uniform Guidelines which sets forth standards for considering empirical data regarding links between particular criminal conduct and subsequent work performance. Second, by developing a targeted screen based on three factors set forth in the Eighth Circuit Court of Appeals decision in Green v. Missouri Specific Railroad, (523 F.2d 1290, 8th Cir. 1975). In Green, the court followed an individualized assessment for persons excluded by the screen, establishing the so-called Green factors: (a) the nature of the crime, (b) the time elapsed since the crime, and (c) the nature of the job in question. In the subsequent individualized assessment, the employer must (i) give notice to the excluded person that he or she was excluded because of their criminal conviction, (ii) provide an opportunity for that person to show the exclusion should not be applied in his or her situation, and (iii) consider whether the information supplied by the excluded person warrants an exception to the policy.

The EEOC acknowledges that validation under its Uniform Guidelines is unlikely because the social science studies linking convictions with future workplace conduct are rare. Instead, it advises employers to use the best practices following the Green factors. Finally, the Guidance addresses the extent to which federal, state, or local restrictions on hiring persons with criminal backgrounds can be reconciled with the Title VII requirements. The EEOC’s position is that Title VII does not preempt federally imposed hiring restrictions, but that Title VII must be considered if the employer imposes a criminal conduct exclusion that goes beyond the federal restrictions. To the contrary, state and local restrictions are preempted by Title VII and thus, an employer who relies upon exclusion under state or local law that is deemed to be a violation of Title VII cannot avoid liability.

Ultimately, the guidance does not prohibit the use of criminal records in hiring or making employment decisions. Rather, it establishes a set of guidelines that it recommends employers abide by in order to establish that the use of criminal records in making employment decisions is job related and consistent with business necessity. The recommendations include: making sure that employers review criminal background check processes with a focus on evaluating whether those checks are consistent with the guidance; developing a written hiring policy and screening process that includes job-related factors; taking an individualized assessment approach when dealing with criminal convictions uncovered during the screening process; ensuring that the action taken is consistent with the business necessity for each individual job; and training its managers, recruiters, and others involved in the process on the requirements under Title VII and the EEOC Guidance. Employers balancing the requirements of Title VII and the EEOC Guidance, which is not binding law, can struggle with the fact that EEOC guidelines often are more expansive than what is required under the current anti-discrimination court decisions. However, since EEOC claims start at the agency level before proceeding in the court, employers are advised to give the guidance thorough consideration before making any employment decisions based upon the use of criminal history information.

As a practical matter, questions employers should ask to ensure that their screening process and the use of the criminal background information are consistent with the guidance include the following:

1. Is the conviction for a misdemeanor as opposed to a felony? Misdemeanors typically involve conduct that is not in and of itself behavior that would bar employment in most circumstances. Felony convictions more often than not involve behavior that may be tied specifically to job-related and business necessity decisions.
2. What is the time period between the individual’s conviction and the employment decision? The longer the time that has passed, the less relevant the conviction may be.
3. Has the individual undergone some type of rehabilitation or counseling related to the behavior as part of the sentence or after the conviction? For example, drug or alcohol rehabilitation for drug-related offenses or anger management programs after an assault or battery conviction.
4. Is the offense directly job related? If the applicant is seeking a job handling finances, a conviction for theft, fraud, or embezzlement would certainly be relevant in making the decision about that individual’s suitability for employment. To a broader degree any conviction involving dishonesty might be relevant. A person applying for a position requiring driving who has a history of moving vehicle violations or DUI convictions would raise appropriate safety concerns.
5. Does the conviction reflect violence or other crimes of a personal nature that would impact workplace safety issues or interaction with the public, customers, or consumers?
6. Does the individual’s conviction reflect negatively upon the company or potentially impact customer or vendor relations?
7. If an individual has multiple convictions over a period of time, are they related to the same behavior showing a pattern of undesirable conduct?
8. Was the conviction subsequently overturned or expunged following completion of a required program, sentencing, or probation?
9. Has the applicant shown steady employment since the conviction and can you get a reference from those employers?
10. Is the applicant qualified regardless of their criminal history?
11. Absent the conviction, would you consider hiring this person? If so, what is the applicant’s story and does it pan out? Does the opportunity for an explanation of the circumstances justify reconsideration of that applicant’s qualifications? As noted in the EEOC Guidance, offering the opportunity to explain the circumstances is a procedure the EEOC believes should be followed for all individuals with criminal background records and not a selected few.

It is apparent that a degree of subjectivity can enter into the process and employers must be careful to ensure that proper steps are taken to ensure the non-discriminatory application of the process and the decisions made. Any time subjectivity enters the process, the potential for “different treatment” arises and thus, the potential for disparate treatment claims.