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New EEOC advice on use of criminal records in employment

On April 25, 2012, the Equal Employment Opportunity Commission (EEOC) issued updated Enforcement Guidance for employers regarding the use of arrest and conviction records in employment decisions under Title VII of the Civil Rights Act of 1964. The guidance tightens the criminal background screening process, but does not prohibit employers from retaining the right to consider criminal reports.

The use of criminal background checks has been a hot button issue with the EEOC over the last several years. The Agency’s concern is that the use of arrest and conviction records in the hiring process and for other employment decisions has a disparate impact in screening out minorities. http://www.eeoc.gov/eeoc/newsroom/release/10-1-09b.cfm

The Agency has long taken the position that a “policy or practice that excludes everyone with a criminal record from employment will not be job related and consistent with business necessity and therefore will violate Title VII, unless it is required by federal law.” In issuing the new guidance, the EEOC noted it is not changing its fundamental position on the use of criminal records. Rather, the EEOC views the Enforcement Guidance as a more in-depth analysis of the issues, in light of recent technological and other changes in hiring and employment. http://www.eeoc.gov/laws/guidance/qa_arrest_conviction.cfm

The new Enforcement Guidance provides key takeaways for employers who use criminal records in hiring and in other employment decisions.

  1. Targeted Screening Process.To establish that use of arrest and conviction records is “job related and consistent with business necessity,” employers should develop a screening process that considers “at least the nature of the crime, the time elapsed, and the nature of the job.”
    • The screening process should then provide an “opportunity for an individualized assessment for people excluded by the screen to determine whether the policy as applied is job related and consistent with business necessity.” The EEOC envisions the “individualized assessment” would consist of:
      • Notice to the individual that he/she was screened out because of a criminal conviction;
      • An opportunity for the individual to demonstrate that the exclusion should not be applied; and
      • Consideration by the employer as to whether the additional information warrants an exception and shows that the policy as applied is not “job related and consistent with business necessity.”
  2. Federal Law Restrictions. 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.
  3. State and Local Law Restrictions. On the other hand, state and local laws or regulations prohibiting employment of individuals with certain types of criminal convictions are preempted or “trumped” by Title VII if those laws require conduct that would be an “unlawful employment practice” under the federal law.
  4. Employer Best Practices.The EEOC’s guidance provides some practical examples of steps employers can take to implement “best practices” when considering criminal record information in hiring and employment decision making. The EEOC’s advice includes:
    • Develop a written policy and procedures for screening applicants and employees regarding criminal conduct.
    • Train managers, hiring officials, and decision makers on how to implement the policy and procedures.
    • Limit inquires regarding criminal records to those that are “job related for the position in question and consistent with business necessity.”
    • Keep information regarding applicant and employee criminal records confidential.

What’s the bottom-line for employers? The new Enforcement Guidance does not prohibit the use of criminal records in hiring or employment decision making. It does make clear, however, that employers should be able to show how the use of criminal records is “job related and consistent with business necessity.” To do that, employers should:

  • Review their criminal background check processes to evaluate whether those processes are consistent with the EEOC guidance.
  • Develop a written hiring policy and a targeted screening process that considers job-related factors.
  • Use an individualized assessment when criminal background information is discovered to ensure the screening process is job-related and consistent with business necessity for the specific situation.
  • Review job applications to ensure inquiries regarding criminal activity are “job-related and consistent with business necessity.”
  • Train managers, recruiters, and others on the applicable federal and state law and EEOC guidance.