5 takeaways from the EEOC’s new guidance on use of criminal records

Yesterday, the US Equal Employment Opportunity Commission issued updated Enforcement Guidance on employer use of arrest and conviction records in employment decisions under Title VII of the Civil Rights Act of 1964. (Title VII is the federal statute that prohibits discrimination in the workplace based on race, color, religion, sex and national origin). You can read a full press release on the updated Enforcement Guidance here.

The press release includes a link to questions and answers about the EEOC’s Enforcement Guidance. However, I will summarize the most important points for employers after the jump…

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Title VII prohibits employers from using criminal history information to discriminate against job applicants because of their race, color, religion, sex, or national origin. But that’s old news. As the EEOC notes, the Third Circuit in El v. SEPTA offered in-depth analysis on this issue. How might discrimination based on these factors arise? Biased statements, inconsistencies in the hiring process, similarly-situated comparators, employment testing, and other statistical evidence.

Employers are reminded that “even where employers apply criminal record exclusions uniformly, the exclusions may still operate to disproportionately and unjustifiably exclude people of a particular race or national origin”. This is known as disparate impact discrimination. “If the employer does not show that such an exclusion is “job related and consistent with business necessity” for the position in question, the exclusion is unlawful under Title VII.

Title VII does not prohibit employers from obtaining criminal background check reports about job applicants or employees. Although the Fair Credit Reporting Act, among other laws, establishes procedures for obtaining such reports. Local laws may also apply. For example, as discussed here, Philadelphia employers may not ask job applicants about certain arrests and may not make any personnel decisions based on records of an arrest that does not result in a conviction.

The fact of an arrest does not establish that criminal conduct occurred. Conversely, criminal convictions are probative and federal laws and regulations that restrict or prohibit employing individuals with certain criminal records provide a defense to a Title VII claim. Note, however, that the EEOC takes the position that state and local laws or regulations are preempted by Title VII if they “purport[] to require or permit the doing of any act which would be an unlawful employment practice” under Title VII. [SHRM, which liked that the guidance does not appear to impose a one-size-fits-all set of rules on employers, did express concern over “the potential conflict between this federal guidance and state laws that require criminal background checks in some industries and for some positions.”]

The Enforcement Guidance contains some best practices to consider for employers who are considering criminal record information when making employment decisions. (a) Eliminate policies or practices that exclude people from employment based on any criminal record; (b) Train managers, hiring officials, and decisionmakers about Title VII and its prohibition on employment discrimination; (c) Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct; (d) Identify essential job requirements and the actual circumstances under which the jobs are performed; (e) Determine the specific offenses that may demonstrate unfitness for performing such jobs; (f) Identify the criminal offenses based on all available evidence; (g) Determine the duration of exclusions for criminal conduct based on all available evidence; (h) Include an individualized assessment; (i) Record the justification for the policy and procedures; (j) Note and keep a record of consultations and research considered in crafting the policy and procedures; (k) Train managers, hiring officials, and decisionmakers on how to implement the policy and procedures consistent with Title VII; (l) 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; (m) Keep information about applicants’ and employees’ criminal records confidential. Only use it for the purpose for which it was intended.