EEOC Updates Guidance on Criminal Records to Prevent Employment Discrimination during Background Checks

On April 25, 2012, the U.S. Equal Employment Opportunity Commission (EEOC) – the agency that enforces federal laws prohibiting employment discrimination – voted 4 to 1 to update the Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964. According to the EEOC, the updated Guidance builds on longstanding court decisions and guidance documents that the EEOC issued over 20 years ago and focuses on employment discrimination based on race and national origin. This greater focus by the EEOC on how employers use criminal records is Trend 2 of the 6th Annual ‘ESR Top Ten Background Check Trends for 2013’ available at https://www.esrcheck.com/Top-Ten-Background-Check-Trends-for-2013.php.

The EEOC enforces Title VII of the Civil Rights Act of 1964 which prohibits employment discrimination based on race, color, religion, sex, or national origin. The Civil Rights Act covers employers with 15 or more employees. The EEOC Enforcement Guidance is part of the EEOC’s efforts to eliminate unlawful discrimination in employment screening, hiring, or retention. The EEOC had originally issued three separate policy documents in February 1987 and July 1987 and in September 1990 explaining when the use of arrest and conviction records in employment decisions may violate Title VII.

The 2012 Guidance is not a rule or regulation and therefore does not have the force or effect of law.  However, it is the EEOC’s position on enforcement of Title VII in regarding criminal records, and therefore is an important document for employers.  An employer that does not follow the EEOC guidelines can be subject to an investigation and litigation by the EEOC, as well as private lawsuits by individuals that may allege a failure to hire based upon discriminatory criteria.  Although Courts are not required to accept the EEOC position, Courts will take an EEOC Guidance into account in any litigation and employers put themselves at risk by not taking the Guidance into consideration.

Leading up to the new Guidance, the EEOC held a public meeting in July of 2011 on ‘Arrest And Criminal History As A Hiring Barrier.’ Recent enforcement actions include the E-RACE (Eradicating Racism and Colorism in Employment) initiative and a strategic plan to target systemic violators. For example, a major beverage firm agreed to pay $3.13 million and make policy changes to resolve a charge of nationwide hiring discrimination against African Americans with criminal background checks following an investigation. The EEOC has also stepped up its enforcement with high profile litigation accusing employers of using criminal records and credit reports in a way that produced a “disparate impact.”

The EEOC cited studies showing that millions of Americans have criminal records, and therefore the use of criminal records as a barrier to employment is problematic.  The National Employment Law Project (NELP), a national advocacy organization for employment rights of lower-wage workers and the unemployed, issued a study in March 2011 called ‘65 Million “Need Not Apply” – The Case for Reforming Criminal Background Checks for Employment.’ The report estimated nearly 65 million people in the United States – more than one in four adults – have criminal records. Other studies also show a high rate, and even though such studies are subject to debate since they can include misdemeanors, it is undisputed that a surprisingly large segment of the American workforce has some sort of criminal record.  The NELP report is available at http://nelp.3cdn.net/e9231d3aee1d058c9e_55im6wopc.pdf.

The EEOC Guidance discusses the differences between arrest and conviction records:

• Arrest: “The fact of an arrest does not establish the criminal conduct has occurred, and an exclusion based on an arrest, in itself, is not job related and consistent with business necessity. However, an employer may make an employment decision based on the conduct underlying an arrest is the conduct makes the individual for the position in question.”
• Conviction: “In contrast, a conviction record will usually serve as sufficient evidence that a person engaged in particular conduct. In certain circumstances, however, there may be reasons for an employer not to rely on the conviction record alone when making an employment decision.”

The EEOC Guidance also discusses disparate treatment and disparate impact analysis under Title VII:

• Disparate Treatment: “A violation may occur when an employer treats criminal history information differently for different applicants or employees, based on their race or national origin (disparate treatment liability).”
• Disparate Impact: “An employer’s neutral policy (e.g., excluding applications from employment based on certain criminal conduct) may disproportionately impact some individuals protected under Title VII, and may violate the law if not job related and consistent with business necessity.”

The Guidance also describes two circumstances in which the EEOC believes employers will consistently meet the “job related and consistent with business necessity” defense:

• “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
• The employer develops a targeted screen considering at least the nature of the crime, the time elapsed, and the nature of the job. 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 updated guidance from the EEOC recommends the following ‘Employer Best Practices’ for employers considering criminal record information when making employment decisions.

General

• 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.

Developing a Policy

• 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.

Questions about Criminal Records

• 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.

Confidentiality

• Keep information about applicants’ and employees’ criminal records confidential. Only use if for the purpose for which it is intended.

The EEOC has long taken the position that an employer should not automatically reject an applicant with a criminal record without taking into consideration whether the matter was related to the job, so that there was a business necessity to deny employment. This is why nearly every employment application follows a question about past criminal conduct with a statement that a criminal record will not be the basis for an automatic rejection. For this reason, prior to the  EEOC Guidance, the use of a “decision matrix” and a scoring system such as “red light, orange light, green light” was not recommended, since a red light tended to be an automatic exclusion without a consideration of the specific facts of that applicant. The EEOC recommended in 1987 that employers first analyze three factors: the nature of the crime; the time elapsed; and the nature of the job. This three part test is known as the “Green” test based upon Green v .Missouri Pacific Railroad, 523 F.2d 1290 (8th Cir. 1975).

The new EEOC Guidance enhances the three part test with more detailed definitions:

Green Factor #1: Nature and gravity of the offense

• Additional language: The harm caused. The legal elements of the crime. The classification of the offense (e.g., misdemeanor vs. felony).

Green Factor #2: Time since the conviction and/or completion of the sentence

• Additional language: Includes evaluation of recidivism.

Green Factor #3: Nature of the job held or sought

• Additional language: More than just job title. Evaluation of specific duties, essential functions, circumstances (i.e. supervised or not) and environment (in a home, at a factory, etc.).

A review of the EEOC Enforcement Guidance for use of criminal records by employers can be broken down into three sections: The Great, The Good, and The Challenging:

The Great

• The EEOC said background checks are absolutely lawful. There is nothing in the Guidance that in anyway prohibits or prevents an employer from engaging in due diligence to select safe and qualified applicants. In addition, the EEOC gave more clarity to the three part Green Test. Prior to the Guidance, employers utilized the barebones three part test. Now for example, instead of just considering the nature of the job, an employer is asked to go into more details such as job title, job duties, essential functions of the job, circumstances (degree of supervision), and environment (e.g. private home vs. factory).

The Good

• The EEOC suggested a “Ban the Box” approach for private employers (See the ESR Trend Number 3 at: https://www.esrcheck.com/wordpress/2012/12/28/ban-the-box-movement-removing-question-about-criminal-records-from-job-applications-spreads-across-united-states/. The idea is to delay questions about criminal records to at or after an interview, so that candidates with past records can still compote on their merits and not suffer an early “knock-out” punch.
• The EEOC also suggested a new approach called an “Individualized Assessment” if applicant fails the three part “Targeted Screen” approach. These two suggestions are easily implemented, and may have little or no negative impact on employer and could potentially have a very positive impact on the problems of associated with finding  appropriate work for ex-offenders.

The Challenging

• The EEOC suggested that employers only ask criminal questions related to the job. Although goal of the EEOC is laudable, the practical implementation is challenging. The idea behind the EEOC suggestion is that a broadly worded question about past criminal history may elicit information that is either too old or irrelevant to the job. The problem is that there are  1,000’s of jobs and crimes, making it an extremely difficult undertaking to precisely determine exactly what offense is relevant to the job. For example, if an applicant was convicted 3 years ago for assault, where is an employer supposed to draw a fine line to say for some jobs that is acceptable and for others it is unacceptable. The goal of not having a criminal record act as a “lifetime ban” on employment is clear, but employers will need to develop practical way to deal with this requirement such as the development of a job relevancy “matrix.”
• The EEOC also suggests the use of studies to determine recidivism and relevance of older crimes. However, the science when it comes to determining future relevance of a past offense is in its development stage.

The updated EEOC Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 is at http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm. The materials for the EEOC public meeting held April 25, 2012 on the use of arrest and conviction records, including testimony and transcripts, are available at http://www.eeoc.gov/eeoc/meetings/4-25-12/index.cfm.

To help employers comply with updated EEOC rules, nationwide accredited background check firm Employment Screening Resources (ESR) offers a whitepaper titled ‘Practical Steps Employers Can Take to Comply with New EEOC Criminal Record Guidance.’ The purpose of this whitepaper is to go beyond simply repeating the EEOC Guidance language and instead give “real world” examples and suggestions on what employers should do now to remain in compliance with EEOC Guidance while performing criminal background checks. This complimentary whitepaper from ESR is undergoing a controlled release and is only available to employers by emailing [email protected].

Employment Screening Resources (ESR) provides clients specific alternatives on EEOC Guidance for criminal records through additions to its proprietary ESR Assured Compliance^SM system. ESR Assured Compliance, which only ESR clients have access to, provides a pathway to compliance with the new EEOC Enforcement Guidance on the use of criminal records with propriety tools, software, and templates. Since all employers need an action plan to comply with the new rules of the EOCC Guidance on the use of arrest and conviction records, ESR Assured Compliance offers clients flexible compliance templates with potential paths they may consider to find the best fit for their business. For more information about ESR Assured Compliance, visit https://www.esrcheck.com/ESR-Assured-Compliance.php. Specific questions about the ESR Assured Compliance system should be emailed to: [email protected].

For more information about Employment Screening Resources (ESR) – ‘The Background Check Authority’ and nationwide screening company accredited by The National Association of Professional Background Screeners (NAPBS®) – visit https://www.esrcheck.com or call Toll Free 888.999.4474. The 6th Annual ‘ESR Top Ten Background Check Trends for 2013’ is at https://www.esrcheck.com/Top-Ten-Background-Check-Trends-for-2013.php.

More information about these trends is available in the updated 2nd Edition of “The Safe Hiring Manual” by ESR Founder and CEO Attorney Lester Rosen. For more information, visit https://www.esrcheck.com/SafeHiringManual.php.

Sources:

http://nelp.3cdn.net/e9231d3aee1d058c9e_55im6wopc.pdf

http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm

http://www.eeoc.gov/eeoc/meetings/4-25-12/index.cfm

About Employment Screening Resources (ESR):

Founded by safe hiring expert Attorney Les Rosen in 1997, Employment Screening Resources (ESR) – ‘The Background Check Authority^SM’– provides accurate and actionable information that empowers employers to make informed hiring decisions for the benefit of their organizations, employees, and the public. CEO Rosen literally wrote the book on background checks with “The Safe Hiring Manual” and ESR is accredited by The National Association of Professional Background Screeners (NAPBS), a distinction held by a small percent of screening firms. Employers choosing ESR know they have selected an agency meeting the highest industry standards. To learn more about ESR, visit https://www.esrcheck.com or call toll free 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 [email protected]. To subscribe to the ESR News Blog Feed, visit https://www.esrcheck.com/wordpress/feed/. To subscribe to the complimentary ESRcheck Report monthly newsletter, please visit https://www.esrcheck.com/Newsletter/.