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:
To view
frequently asked questions, go to:
To view the
Uniform Guidelines on Employee Selection Procedures, go to:
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.
