Employers increasingly are conducting criminal background checks on applicants and employees. A recent survey by the Society for Human Resource Management found that 92% of responding employers used this tool as part of their standard protocols. Those background checks are finding plenty of data. According to a study by the National Employment Law Project, approximately 64 million adults in the U.S. have criminal records. That represents about 1 out of every 4 adults in the U.S. population. With the breadth of digital information accessible online, individuals simply cannot hide their criminal records from employers. Not surprisingly, companies are far less likely to grant an interview or offer a job to someone with a conviction or an arrest record.
Against this backdrop, in April of 2012, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued updated guidance on employers’ use of criminal background checks. See http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm. Why is this a subject for the EEOC? The agency cited statistical findings that African Americans and Hispanics have disproportionately higher arrest and conviction rates than other groups. The EEOC was also troubled by studies suggesting that some criminal record databases may be providing inaccurate data to employers.
The EEOC’s guidance observes that an employer’s use of arrest or conviction records may violate the law in two primary ways. First, an employer may be liable for disparate treatment discrimination if it treats applicants with similar criminal records differently because of their race, color, religion, sex or national origin. That proposition is fairly straightforward. Secondly, the EEOC asserts that an employer may be liable if its use of a general policy on criminal records tends to exclude members of a protected class disproportionately and without justification. In the EEOC’s view, “evidence of a racially balanced workforce will not be enough to disprove disparate impact.”
The EEOC’s guidance discusses the difference between arrest and conviction records, noting that the fact of an arrest does not establish that criminal conduct has occurred. Therefore, exclusion of an applicant or employee based on an arrest alone would not be considered job related and consistent with business necessity. The EEOC recognizes that in some cases, assuming state law would not prohibit it, an employer may make an employment decision based on the conduct underlying an arrest if that conduct makes the person unfit for the job in question.
On the other hand, in light of the procedural safeguards that accompany trials and guilty pleas, conviction records are usually sufficient evidence that a person engaged in particular conduct. At the same time, the EEOC recommends that employers not ask for conviction information on job applications, and instead wait until the interview process. In addition, the EEOC views a blanket exclusion of all individuals with conviction records as improper, and it cautions employers to limit their conviction inquiries to those that are “job related and consistent with business necessity.” In the event that a criminal conduct exclusion has a disparate impact, the EEOC states that an employer must “show that the policy operates to effectively link specific criminal conduct, and its dangers, with the risks inherent in the duties of a particular position.”
The EEOC recognizes two ways that an employer might establish a defense that a criminal exclusion policy is “job related and consistent with business necessity.” First, an employer can validate its screening process using the Uniform Guidelines on Employee Selection Procedure Standards. The associated costs, or the unavailability of data concerning certain criminal conduct, however, may make such an approach unlikely. Secondly, an employer can develop a targeted screen that considers the nature of the crime, the time elapsed, and the nature of the job in question, and provides for an individualized assessment to determine if a particular exclusion is job related and consistent with business necessity. That assessment should include notice to the affected individual, an opportunity to respond, and consideration of whether an exception to the exclusion should be applied.
In short, the EEOC expects employers to conduct a case-by-case analysis of individuals with criminal histories. The guidance recites a number of factors that employers should consider, including: inaccuracies in the criminal record, the facts or circumstances surrounding the offense or conduct, the number of offenses for which the individual was convicted, the age of the individual at the time of the conviction, evidence that the individual performed the same type of work after the conviction with no known incidents of criminal conduct, the length and consistency of employment history before and after the offense or conduct, rehabilitation efforts, employment or character references and any other information regarding the fitness for a job, and whether the individual is bonded under a government bonding program.
The EEOC’s guidance concludes by offering the following “employer best practices”:
- Eliminate policies or practices that exclude people from employment based on any criminal record.
- Train hiring managers and decision-makers about Title VII and how to properly apply the employer’s particular policies.
- Develop a narrowly tailored written policy that identifies essential job requirements, determines the specific offenses that may demonstrate unfitness for a job, prescribes time limits for considering criminal history, and allows individuals to respond to criminal history reports.
- Record the justification for the policy, as well as consultations and research considered in crafting it.
- Limit inquiries to records for which exclusion would be job related for the position in question and consistent with business necessity.
- Maintain the confidentiality of criminal records.
Employers who use criminal background checks should take heed. Taking a simple approach that “convicts need not apply” is fraught with peril.