EEOC Issues Enforcement Guidance for the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act of 1964

By: Neil L. Wojtal

On April 25, 2012, the EEOC issued new Guidance regarding hiring decisions made by employers based upon arrest and conviction records and how such decisions could violate Title VII.  Title VII protects persons from discrimination based upon race, color, religion, sex or national origin. The EEOC determined that national data supports a finding that criminal record exclusions have a disparate impact based on race and national origin. Therefore, the EEOC has determined that criminal record exclusion policies of an employer could lead to a Title VII disparate impact violation.

The two types of violations are:

1. A violation may occur when an employer treats criminal history information differently for different applicants or employees, based on their race or national origin. This is known as disparate treatment liability.

2. An employer’s neutral policy (e. g. excluding applicants from employment based on certain criminal conduct) may disproportionately impact some individuals protected under Title VII, and may violate the law if not job related and consistent with business necessity. This is known as disparate impact liability.

What can an employer do to make sure that they are in compliance with this Guidance?

§  “Two circumstances in which the Commission believes employers will consistently meet the “job related and consistent with business necessity” defense are as follows:

§  The employer validates the criminal conduct exclusion for the position in question in light of the Uniform Guidelines on Employee Selection Procedures (if there is data or analysis about criminal conduct as related to subsequent work performance or behaviors); or

§  The employer develops a targeted screen considering at least the nature of the crime, the time elapsed, and the nature of the job (the three factors identified by the court in Green v. Missouri Pacific Railroad, 549 F.2d 1158 (8th Cir. 1977)). The employer’s policy then provides an opportunity for an individualized assessment for those people identified by the screen, to determine if the policy as applied is job related and consistent with business necessity. (Although Title VII does not require individualized assessment in all circumstances, the use of a screen that does not include individualized assessment is more likely to violate Title VII.).”

Note that compliance with other federal laws and/or regulations that conflict with Title VII is a defense to a charge of discrimination under Title VII. In addition, 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 U. S. C. Sec. 2000e-7.

How does an employer protect his/ her company from violating Title VII?

The EEOC advises employers to adopt the following best practices:

“VIII. Employer Best Practices

The following are examples of best practices for employers who are considering criminal record information when making employment decisions.

General

·         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.

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.

§  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.”

In light of this Guidance, all employers are encouraged to review their policies concerning criminal convictions when hiring new employees or determining the continued employment of current employees.

To view the entire Guidance, go to:

http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm

To view frequently asked questions, go to:

http://www.eeoc.gov/laws/guidance/qa_arrest_conviction.cfm

To view the Uniform Guidelines on Employee Selection Procedures, go to:

http://uniformguidelines.com/uniformguidelines.html

The information contained in this document is intended for the sole purpose of providing general legal information and is not intended as legal advice of any kind. This information may not apply to your specific issue, therefore, do not act upon this information without consulting Zimmerman & Steber Legal Group, S. C. or another qualified attorney.