The National Association of Professional Background Screeners (NAPBS®) — ‘The Voice of Screening Professionals’ — has issued a statement in response to the updated Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 issued by U.S. Equal Employment Opportunity Commission (EEOC) on April 25, 2012. The updated EEOC Guidance is available at http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm.
The statement on the updated EEOC Guidance from the NAPBS, a non-profit trade association representing more than 700 member companies worldwide that offer background screening, reads:
NAPBS supports and promotes criminal background checks as an appropriate and necessary tool to help employers make informed hiring decisions and ensure the safety and well-being of their staff and customers.
Employers use background checks to protect their business interests, ensure the reliability of their workforce and to protect current employees, customers, members of the public, brand name and trade secret information; criminal history checks are a part of the overall screening of a potential employee.
While we continue to believe the process would have benefited from greater transparency, such as through the public notice and comment process, we recognize and appreciate the bipartisan manner in which the guidance was developed. We look forward to continuing to work with the Commission on this issue and as we more carefully review the guidance issued there may be additional concerns to consider, such as the treatment of state and local prohibitions or restrictions. We stand committed to educating our members and end-user community on the revised guidance.
As reported on the EEOC News blog, the EEOC, the agency that enforces federal laws prohibiting employment discrimination, held a public meeting on Wednesday, April 25, 2012 and voted 4-1 to approve the updated Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions. Information about the EEOC public meeting, including testimony and transcripts, is available at http://www.eeoc.gov/eeoc/meetings/4-25-12/index.cfm.
The EEOC also offered Questions and Answers (Q & As) about the updated Enforcement Guidance, which the EEOC states “consolidates and supersedes the Commission’s 1987 and 1990 policy statements on this issue” and “is designed to be a resource for employers, employment agencies, and unions covered by Title VII,” that are available at http://www.eeoc.gov/laws/guidance/qa_arrest_conviction.cfm. One of the questions answered is:
“How does the Enforcement Guidance differ from the EEOC’s earlier policy statements?”
The Enforcement Guidance provides more in-depth analysis compared to the 1987 and 1990 policy documents in several respects.
- The Enforcement Guidance discusses disparate treatment analysis in more detail, and gives examples of situations where applicants with the same qualifications and criminal records are treated differently because of their race or national origin in violation of Title VII.
- The Enforcement Guidance explains the legal origin of disparate impact analysis, starting with the 1971 Supreme Court decision in Griggs v. Duke Power Company, 401 U.S. 424 (1971), continuing to subsequent Supreme Court decisions, the Civil Rights Act of 1991 (codifying disparate impact), and the Eighth and Third Circuit Court of Appeals’ decisions applying disparate impact analysis to criminal record exclusions.
- The Enforcement Guidance explains how the EEOC analyzes the “job related and consistent with business necessity” standard for criminal record exclusions, and provides hypothetical examples interpreting the standard. There are two circumstances in which the Commission believes employers may consistently meet the “job related and consistent with business necessity” defense: 1.) The employer validates the criminal conduct exclusion for the position in question in light of the Uniform Guidelines on Employee Selection Procedures (if there is data or analysis about criminal conduct as related to subsequent work performance or behaviors); or 2.) The employer develops a targeted screen considering at least the nature of the crime, the time elapsed, and the nature of the job (the three factors identified by the court in Green v. Missouri Pacific Railroad, 549 F.2d 1158 (8th Cir. 1977)). The employer’s policy then provides an opportunity for an individualized assessment for those people identified by the screen, to determine if the policy as applied is job related and consistent with business necessity. (Although Title VII does not require individualized assessment in all circumstances, the use of a screen that does not include individualized assessment is more likely to violate Title VII.).
- The Enforcement Guidance states that federal laws and regulations that restrict or prohibit employing individuals with certain criminal records provide a defense to a Title VII claim.
- The Enforcement Guidance says that state and local laws or regulations are preempted by Title VII if they “purport to require or permit the doing of any act which would be an unlawful employment practice” under Title VII. 42 U.S.C. § 2000e-7.
- The Enforcement Guidance provides best practices for employers to consider when making employment decisions based on criminal records.
The ‘Employer Best Practices’ recommended by the EEOC updated guidance for employers considering criminal record information when making employment decisions include the following:
- Eliminate policies or practices that exclude people from employment based on any criminal record.
- Train managers, hiring officials, and decision makers about Title VII and its prohibitions on employment discrimination.
- Develop a narrowly tailored written policy and procedures for screening criminal records. Identify essential job requirements and the actual circumstances under which the jobs are performed.
- Determine specific offenses that may demonstrate unfitness for performing such jobs. Identify criminal offenses on all available evidence.
- Determine the duration of exclusions for criminal conduct based on all available evidence. Include an individualized assessment.
- Record the justification for the policy and procedures.
- Note and keep a record of consultants and decision makers on how to implement the policy and procedures consistent with Title VII.
- When asking questions about criminal records, limit inquiries to records for which exclusion would be job related for the position in question and consistent with business necessity.
- Keep information about applicants’ and employees’ criminal records confidential. Only use if for the purpose for which it is intended.
To keep employers informed about the updated EEOC Enforcement Guidance on the use of arrest and conviction records, Employment Screening Resources (ESR) will post updates in the ESR News blog and will soon schedule a webinar on the subject. For more information, visit Employment Screening Resources (ESR) – ‘The Background Check Authority’ and nationwide background screening firm accredited by the National Association of Professional Background Screeners (NAPBS®) – at http://www.ESRcheck.com or call 415.898.0044.
About Employment Screening Resources (ESR):
Employment Screening Resources (ESR) – ‘The Background Check AuthoritySM’– provides accurate and actionable information, empowering employers to make informed safe hiring decisions for the benefit for our clients, their employees, and the public. ESR literally wrote the book on background screening with “The Safe Hiring Manual” by Founder and CEO Lester Rosen. ESR is accredited by The National Association of Professional Background Screeners (NAPBS), a distinction held by a small percentage of screening firms. By choosing an accredited screening firm like ESR, employers know they have selected an agency that meets the highest industry standards. For more information about Employment Screening Resources (ESR), visit http://www.esrcheck.com/ or call 415.898.0044 or 888.999.4474.
About ESR News:
The Employment Screening Resources (ESR) News blog – ESR News – provides employment screening information for employers, recruiters, and jobseekers on a variety of topics including credit reports, criminal records, data privacy, discrimination, E-Verify, jobs reports, legal updates, negligent hiring, workplace violence, and use of search engines and social network sites for background checks. For more information about ESR News or to send comments or questions, please email ESR News Editor Thomas Ahearn at firstname.lastname@example.org.