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Criminal Background Checks in Hiring: EEOC Provides Updated Title VII Guidance


August 1, 2012 by Peter Altman
Category: Recruitment and Hiring , HR Advisor

by Peter Altman, Labor and Employment Attorney,
Summit Law Group

Introduction

Criminal background checks provide valuable information to employers when screening job applicants and are required for certain positions in Washington, including positions where employees have unsupervised contact with children and vulnerable adults. Properly implemented criminal record screening policies help employers ensure a safe and productive workforce while reducing the risk of liability for claims of negligent hiring. Caution is required, however, as employers with overzealous or improperly implemented policies face discrimination claims under Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.).

Earlier this year, the U.S. Equal Employment Opportunity Commission (EEOC) updated its guidance on the use of criminal records in employment decisions.1 This update builds on existing EEOC guidance and is intended to consolidate and supersede all previous guidance on criminal background checks. Employers are encouraged to review their existing screening policies to ensure they effectively minimize risk while complying with the latest guidance on Title VII.

The Problem with Criminal Records under Title VII

While Title VII does not prohibit employers from requiring applicants or employees to provide information about arrests, convictions, or incarceration, it is unlawful to discriminate in employment based on race, color, national origin, religion, or sex. There are two ways in which an employer's use of criminal records may violate Title VII:

Disparate Treatment. Title VII prohibits employers from treating applicants and employees with similar criminal records differently because of race, color, national origin, religion, or sex. For example, an employer may face liability for disparate treatment discrimination if it routinely hires white applicants with criminal histories over minority job applicants with substantially similar qualifications and substantially similar criminal histories.

Disparate Impact. Title VII also prohibits employers from using criminal records in a manner that disproportionately excludes members of a protected class, even if the underlying policies or practices are neutrally applied to all applicants and employees. When such a policy or practice is challenged as having a disparate impact under Title VII, an employer must demonstrate the policy or practice is "job related for the position in question and consistent with business necessity." An employer also faces liability if it fails to utilize a less discriminatory alternative policy that serves its legitimate hiring goals as effectively as the challenged practice. Disparate impact discrimination may arise, for example, when an employer has a blanket policy against hiring job applicants with any criminal conviction, regardless of its relationship to the job. Such a policy can have a discriminatory impact on minority groups with conviction rates disproportionate to their numbers in the general population. Evidence of a racially balanced workforce is not sufficient to disprove a claim of disparate impact discrimination.

Overview of Updated EEOC Guidance

Distinction between arrest and conviction records. Arrests, by themselves, are not proof of criminal conduct and should not be used to exclude job applicants or employees. However, an employer may independently investigate the conduct underlying an arrest and disqualify an applicant or employee if the conduct makes the individual unfit for the position in question. In comparison to arrests, convictions usually serve as sufficient evidence that criminal conduct occurred and may generally be relied upon by employers. The EEOC recommends that employers not inquire into convictions on job applications and, if and when such inquiries are made during the interview process, they be limited to specific convictions for which exclusion would be job related for the position in question and consistent with business necessity.

"Job related and consistent with business necessity." If an applicant or employee establishes a disparate impact discrimination claim, Title VII shifts the burden onto the employer to demonstrate that its use of criminal records is "job related and consistent with business necessity." To do so, an employer must show that its policies operate to "effectively link specific criminal conduct, and its dangers, with the risks inherent in the duties of a particular position." The EEOC recommends two avenues to meet this burden:

  1. An employer may validate its criminal background policies with the Uniform Guidelines on Employee Selection Procedures. However, significant challenges are associated with validation, making it difficult, if not impossible for most employers to obtain. As a practical matter, most employers should focus on adopting targeted screens (discussed below).

  2. As another avenue, an employer may develop a "targeted screen," considering, at a minimum, three factors: (1) the nature and gravity of the crime, (2) the time elapsed since the conviction and/or completion of the sentence, and (3) the nature of the job.2 A targeted screen is essentially an employer policy of excluding individuals from particular positions for specified criminal conduct within a defined time period. For example, an employer might adopt a policy excluding any applicant with a conviction for theft crimes (such as burglary, robbery, larceny, or identity theft) from working in a position with access to personal financial information for at least seven years following the conviction or release from incarceration. The EEOC recommends targeted screening policies include an "individualized assessment," where individuals subject to exclusion based on their criminal history are provided an opportunity to demonstrate their exclusion is unwarranted based on the circumstances or other mitigating factors.3 The use of individualized assessments helps employers avoid Title VII liability by allowing them to consider more complete information on applicants or employees before making final employment decisions. Individualized assessments are not required by Title VII and are often difficult to provide, especially for large employers with significant applicant pools. However, the EEOC has made clear that a targeted screen without an individualized assessment is much more likely to run afoul of Title VII.

Compliance with other federal laws or regulations. The EEOC reiterated that an employer's compliance with other federal laws or regulations conflicting with Title VII remains a valid defense to a discrimination claim. For example, federal law excludes individuals convicted of certain crimes from working as airport security screeners or otherwise having unescorted access to the secure areas of an airport. Similar exclusions exist for federal law enforcement officers, child care workers in federal agencies, bank employees, and port workers, among other positions. Compliance with federal laws and regulations by applicable employers is a complete defense, even to an otherwise valid Title VII claim.

Best Practices

The EEOC offered the following best practices for employers to follow when utilizing criminal history information in employment decisions:

General

  • Eliminate blanket policies or practices that exclude individuals from employment based on having any criminal record unless required by state or federal law.
  • Train managers, hiring officials, and decision-makers about Title VII and its prohibition of employment discrimination.
  • Ensure that final decision-makers do not have knowledge of any aspects of applicants' criminal history not relevant to the hiring decision (this suggestion, while not stated by the EEOC, remains a best practice for employers to follow).

Developing a Policy

  • 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.
  • Determine the duration of exclusions for criminal conduct based on all available evidence.
  • Include an individualized assessment for targeted screens.
  • Document the justification for the policy and procedures (and keep records on file).
  • 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.

Questions about Criminal Records

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

Confidentiality

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


 

1. The full text of the guidance can be found online at: http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm

2. These three factors are known as the "Green factors," announced by the Eighth Circuit Court of Appeals in Green v. Missouri Pacific Railroad, 549 F.2d 1158 (8th Cir. 1977).

3. An individual might show, for example, that he/she was not correctly identified in the criminal record or that the record is inaccurate. The EEOC provides other examples of relevant information: (1) the facts or circumstances surrounding the offense; (2) the number of offenses for which the individual was convicted; (3) older age at the time of conviction or release from prison; (4) the length and consistency of the individual's employment history before and after the offense; (5) rehabilitation efforts, such as education or training; (6) employment or character references; and (7) whether the individual is bonded under a federal, state, or local bonding program.


MRSC is a private nonprofit organization serving local governments in Washington State. Eligible government agencies in Washington State may use our free, one-on-one Ask MRSC service to get answers to legal, policy, or financial questions.

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