Earlier this year, on April 25, 2012, the Equal Employment Opportunity Commission (“EEOC”) released new guidance on the consideration of arrest and conviction records in employment decisions under Title VII of the Civil Rights Act of 1964.  In the continuing effort by the government to exercise more control over free enterprise, the use of an applicant’s criminal history in making employment decisions may, in some cases, violates the prohibition against employment discrimination under Title VII.  This most recent guidance issued by the EEOC is supposedly based upon longstanding court decisions and guidance documents issued by the EEOC over 20 years ago. The EEOC enforces Title VII, which prohibits employment discrimination based on race, color, religion, sex, or national origin. Interestingly enough, Title VII does not list having a criminal record as a protected basis.  Whether a covered employer’s reliance on a criminal record to deny employment violates Title VII depends on whether it is part of a claim of employment discrimination based on race, color, religion, sex, or national origin.

In a recent survey done, 92% of responding employers stated that they subjected all or some of their job candidates to criminal background checks. Employers have reported that their use of criminal background information is related to ongoing efforts to fight employee theft and fraud, as well as concerns about workplace violence and the potential liability for negligent hiring.  Employers must walk a fine line in making these determinations, which unfortunately, is not always easy.  Should it be the employer’s responsibility to take a chance on someone who has criminal record? Should it not be up to the employer to consider that as a factor in hiring?

The guidance discusses the considerations that should be given to arrest records and stated the following:

The fact of an arrest does not establish that criminal conduct has occurred, and an exclusion based on an arrest, in itself, is not job related and consistent with business necessity. However, an employer may make an employment decision based on the conduct underlying an arrest if the conduct makes the individual unfit for the position in question.

The difficulty therein lies with the employer to determine whether the conduct underlying the arrest will make that individual unfit for the position.  For example, one may argue that any violent behavior exhibited by a potential employee in the past will make any employer weary of bringing on that employee for the fear that this aspect of the applicant’s personality may once again rear its ugly head.  But can the employer deny the applicant the job opportunity for that reason alone? Or does the conduct in question have to be related in some way to the position they are being considered for? Should an employer not have the freedom to employ who they choose to employ?  If an employer has a choice between two similar individuals, but one of the individuals has an extensive arrest record (although the crimes he was arrested for may not be related to the job he is applying for), should it not be the employer’s choice to choose the individual they believe to be the safer, more reliable bet?  Or is there always the inference that the employer’s decision was based on stereotyping and race?

The guidance also discusses the difference when evaluating based upon a conviction record, since that record will, in most cases, serve as sufficient evidence that a person engaged in that particular conduct.  Surprisingly though, the guidance states that even in those circumstances, there may be reasons for an employer to not rely on the conviction record alone when making an employment decision.

Although this information is presented merely as “guidance”, the EEOC states that this is provided to “update and consolidate … all of its prior policy statements about Title VII and the use of criminal records in employment decisions.” Further, this guidance will be considered by the Commission as part of their “efforts to eliminate unlawful discrimination in employment screening, for hiring or retention, by entities covered by Title VII, including private employers as well as federal, state, and local governments.”

This post is in no way endorsing this latest “advice” provided by the EEOC, as it only evidences the continuing pattern of increased government interference with private business, but here are a few points suggested by the EEOC to comply:

  • Employers should steer clear of asking about convictions on job applications unless they are clearly related to the job the applicant is applying for.

  • When considering criminal histories, assess the nature and gravity of the offense(s), evaluate the time that has passed since the conviction and completion of sentence, and consider the nature of the job sought.

  • When the criminal history isn’t so clearly relevant and related to the position sought, even after conducting the above assessment, the EEOC recommends further individual assessment including evaluating and considering the facts and circumstances around the offense or conduct, the number of offenses the applicant has been arrested for or convicted or, the age of the applicant and dates of conviction, evidence that the applicant has successfully and without incident performed the same type of work, length, performance and consistency of work before and after offenses, rehabilitation efforts, references and whether the individual is bonded under a bonding program.

  • The EEOC provides the following list of best practices:

  • Eliminate policies or practices that exclude people from employment based on any criminal record.

  • Train managers, hiring officials, and decision makers about Title VII and its prohibition on employment discrimination.

  • Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct.

  • Identify essential job requirements and the actual circumstances under which the jobs are performed.

  • Determine the specific offenses that may demonstrate unfitness for performing such jobs.

  • Identify the criminal offenses based on all available evidence.

  • Determine the duration of exclusions for criminal conduct based on all available evidence.

  • Include an individualized assessment.

  • Record the justification for the policy and procedures.

  • Note and keep a record of consultations and research considered in crafting the policy and procedures.

  • Train managers, hiring officials, and decision makers on how to implement the policy and procedures consistent with Title VII.

  • When asking questions about criminal records, limit inquiries to records for which exclusion would be job related for the position in question and consistent with business necessity.

  • Keep information about applicants’ and employees’ criminal records confidential. Only use it for the purpose for which it was intended.

Please contact Dana Perminas (312) 334-3474 with any questions regarding this issue.