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EEOC Announces Revised Enforcement Guidelines for Use of Arrest and Conviction Records
On April 25, 2012, the EEOC issued enforcement guidelines that discuss the interaction of Title VII and the use of arrest and conviction records in employment decisions. Enforcement Guidance. These updated guidelines supersede the EEOC’s 1987 and 1990 policy statements, as well as the EEOC’s discussion of the issue in its Race & Color Discrimination Compliance Manual. While the EEOC maintains that the guidelines do not change anything about its view of the law, a closer review of the Enforcement Guidance reveals that the risk to employers conducting criminal records screening likely has been substantially increased.
Under Title VII of the Civil Rights Act, an employment practice is unlawful if it discriminates against a job applicant because of race, color, religion, sex, or national origin. There are two ways that a criminal record policy can violate Title VII. First, if an employer treats job applicants or employees with the same criminal records differently, and second, if an employer applies its policy uniformly, but it results in a disproportionate impact on a protected class of employees. Data shows that hiring decisions based on criminal records often have a disparate impact based on race and national origin. In disparate impact cases, the employer can defend its policy by showing that it is “job related and consistent with business necessity.” But even if an employer successfully demonstrates that it satisfies the business necessity test, a Title VII plaintiff can still prevail if she demonstrates that there is a less discriminatory alternative that serves the employer’s goals just as effectively
The Enforcement Guidance explains circumstances under which a policy regarding criminal records may be “job related and consistent with business necessity” and provides best practices for employers to consider when they make decisions based on an applicant’s criminal history. Employers should be aware that the new Enforcement Guidance specifically identifies examples of polices that it deems to violate Title VII (and will not meet the business necessity test), including automatic blanket-exclusions for any applicant with a criminal record and those policies that exclude applicants based on an arrest without a conviction (although the Guidance specifically states that an employer may consider the underlying conduct if it makes the applicant unfit for the particular position).
The EEOC recommends that employers do not ask about convictions on job applications, and that if any employer chooses to make such inquiries, that they are limited to those types of convictions that would be job-related for the position in question and consistent with business necessity. In addition, the EEOC recommends training managers and decisionmakers on Title VII and its prohibition on discrimination.
Of particular help to employers, in the Enforcement Guidance the EEOC identifies two circumstances where it believes employers will consistently be able to establish a business necessity defense: (1) when the employer validates the criminal conduct screen by one of the three approaches described in the EEOC’s Uniform Guidelines on Employee Selection Procedures; and (2) when the employer develops a “targeted screen” policy that considers (at a minimum) the nature and gravity of the crime, the time that has passed since the offense, and the nature of the job, and then provides an individualized assessment to where the applicant has a chance to show that the policy is not properly applied to him or her.
The EEOC has included “employer best practices” in the Guidance, and recommends several concrete steps that employers should take, noting that employers should identify essential job requirements, determine specific criminal offenses that may demonstrate that an applicant is unfit to perform such jobs; determine the duration of the exclusion, including an individualized assessment; and record the justification for the policy, including notes of any research or consultations considered in developing the policy.
While the Enforcement Guidance does not have the force of law, it is nonetheless a clear indication of how the EEOC will view employer requests for arrest and conviction information in assessing charges of discrimination. Taking time to review your policies with this guidance in mind may allow you to avoid future confrontations with the EEOC.