The Equal Employment Opportunity Commission recently released Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964.
The EEOC is charged with enforcing Title VII, which prohibits employment discrimination based on race, color, religion, sex, or national origin. Persons with a criminal record are not a protected class. However, even facially neutral policies that have a disproportionate impact on members of a protected class may violate Title VII if the policy is not job related and consistent with business necessity.
As part of its analysis, the EEOC considered that African American and Hispanics are arrested at a rate 2 to 3 times their proportion of the general population. As a result of these and additional conviction and incarceration statistics, the EEOC has long held the position that a blanket policy of refusing to consider job applicants with a criminal record is a violation of Title VII.
The EEOC provides two circumstances where an employer may “consistently” meet the job related and consistent with business necessity standard. First, an employer can validate a criminal records exclusion for the position in question per the Uniform Guidelines on Employee Selection Procedures. Second, and of greater concern for most employers, an employer may develop a “targeted screen” which considers, at a minimum, the nature of the crime, the time elapsed, and the nature of the job, and then provides an opportunity for an individualized assessment for people excluded by the screen to determine whether the policy, as applied to a particular applicant’s situation, is job related and consistent with business necessity. The guidance goes further in discussing the individual assessments, and advises employers to consider each of nine factors, including a) accuracy of the criminal record; b) facts surrounding the offense or conduct; c) the number of offenses; d) age at time of conviction or release from incarceration; e) length and consistency of employment history before and after the criminal record; f) rehabilitation efforts; g) employment and character references; and h) whether the individual is bonded under a federal, local, or state bonding program.
Employers that currently use criminal records to screen applicants, or are considering doing so in the future, may wish to review their policies with an employment law attorney in light of the recent EEOC guidance.
