EEOC Issues New Enforcement Guidance on Use of Arrest & Conviction Records

November 1, 2012

Published in the November issue of Business NH Magazine.

Many employers use criminal background checks as a way to filter job candidates. While this type of information can be useful in applicant screening, employers need to be careful to avoid violating Title VII, which protects employees from discrimination on the basis of race, color, religion, sex or national origin. In its latest published Enforcement Guidance issued on April 25th, the EEOC has provided employers with useful information regarding the agency’s view on the use of criminal history information when making employment-related decisions.

As a preliminary matter, employers need to be aware that there are two types of discrimination prohibited by Title VII. First, employees and job applicants are protected from disparate (different or discriminatory) treatment based on the employee’s membership in a protected class. For example, an employer cannot make a decision not to interview or hire an applicant on the basis of the applicant’s sex. That type of policy or practice is discriminatory on its face. Second, employers are prohibited from behaving in a manner that would have a disparate impact on a protected class, meaning that members of that class are disproportionately affected by the policy or practice. It is within this second arena where employers can run afoul of Title VII using criminal records. A seemingly neutral policy, such as not hiring applicants based on past criminal conduct, can disproportionately impact individuals protected under Title VII. As the EEOC notes, statistics reflect that arrest and incarceration rates are particularly high for African American and Hispanic men, who are arrested at a rate that is 2 to 3 times their proportion of the general population. Therefore, a policy or practice of rejecting candidates solely on the basis of a criminal record is discriminatory because it has a disparate impact based on color, race, and national origin.

While certain states, including Massachusetts, have specific rules regarding the timing and scope of inquiries into criminal background information, Title VII does not regulate the acquisition of criminal history information. Rather, Title VII comes into play when employers seek to use this information to justify a decision relating to hiring, job promotion, performance management, and retention. In its Enforcement Guidance, the EEOC provides employers with some useful information in this regard, clarifying its position that any decision regarding the use of criminal history information must be “job related and consistent with business necessity.”

The EEOC makes an important distinction between the use of arrest records and conviction records. The fact of an arrest does not establish that any criminal conduct has occurred. Therefore, employment decisions relating to the existence of a prior arrest alone are not job-related and consistent with business necessity and cannot be used to deny an employment opportunity. Criminal convictions, on the other hand, will generally serve as evidence that the person engaged in a particular conduct, and may be relied upon for purposes of screening applicants or employees. However, the existence of the conviction is not enough to meet the “job-related and consistent with business necessity” standard. In order to meet this standard, the employer must (1) determine that the conviction meets a conduct exclusion under the Uniform Guidelines on Employee Selection Procedures; or (2) develop an individualized assessment, considering the nature of the crime, the time elapsed, and the nature of the job position. This guidance is consistent with EEOC past practice, requiring employers to consider the circumstances of each conviction in light of the job position, rather than adopting a blanket policy that may disparately impact a protected class.

The Enforcement Guidance also contains recommendations for employers to consider, such as eliminating inquiries regarding convictions on job applications, as a “best practice.” However, as long as an employer considers the existence of a particular conviction as part of the individualized assessment described above, there is nothing unlawful about retaining this question on your job application. Employers should, however, review background screening policies and practices in light of the Enforcement Guidance and make adjustments to ensure that these inquiries can be justified as job related and consistent with business necessity. Further, employers would be well served by training recruiters and managers regarding lawful use of criminal history information.

While some were concerned that the new enforcement guidance would constitute a radical departure from previous EEOC policy, for the most part, the guidance is simply a restatement of the Commission’s long-standing position on employer use of criminal background information. However, in light of the new guidance, employers should anticipate greater oversight by the EEOC. While the guidance itself is not a legal mandate, it does provide employers with greater understanding about how the EEOC will analyze charges, and you can bet that plaintiffs and their attorneys will attempt to use the guidance in their favor as they pursue actions against employers.

Colleen C. Karpinsky is vice president in charge of legal for Dyn of Manchester. Charla Bizios Stevens is a Director and Shareholder in the Employment Practice Group of the McLane Law Firm, the largest full-service law firm in the state of New Hampshire, with offices in Concord, Manchester and Portsmouth as well as Woburn, Massachusetts.