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EEOC Updated Guidance on the Use of Criminal Records

7/3/2012By Brenda Johnson, SPHR

On April 25, 2012, the Equal Employment Opportunity Commission (EEOC) issued “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964”, superseding earlier guidance on this issue.

The guidance can be found on the EEOC website at: http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm.

Title VII prohibits employment discrimination based on race, color, religion, sex, or national origin. Although people with criminal records are not a protected class under Title VII, the use of criminal records could violate Title VII if the records are used in such a way that causes either “disparate treatment” or “disparate impact” on a protected class.

Disparate treatment occurs when a person is treated differently because of the person’s protected class. Refusing to hire an African-American candidate based on his/her criminal record but hiring a similarly situated white applicant who has the same criminal record is an example of disparate treatment based on race.

Disparate impact can occur when the effect of an employer’s uniformly-applied, neutral policy disproportionately screens out people from a protected class. For example, an employer’s policy of refusing to hire anyone with a criminal conviction (unless it is job-related and consistent with business necessity) has a disparate impact on African Americans and Hispanics since those two groups have criminal records that are disproportionate to their representation in the general population.

The EEOC’s position is that an automatic, across-the-board policy excluding all employment opportunities because of any criminal conduct is not job-related and consistent with business necessity, and is therefore discriminatory “because it does not focus on the dangers of particular crimes and the risks in particular positions.”

The guidance outlines a target screening approach that employers can use to establish that the use of criminal records for a particular position is job-related and consistent with business necessity.

Using the target screening approach, the employer first considers:

• the nature of the job
• the nature and gravity of the crime
• the length of time since the crime occurred

Then, the employer:

• notifies the person that the criminal conviction excludes him/her from employment
• provides the person with the opportunity to demonstrate that the exclusion should not be applied due to his/her particular circumstances
• considers whether the additional information provided by the person warrants an exception

The EEOC concludes by offering these examples of best practices for employers who use criminal records when making employment decisions:

• 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.
  • Determine the duration of exclusions for criminal conduct.
  • 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.

If you have questions about this topic or other HR issues, contact the Research Hotline at research@trusightinc.com or call 763.253.9100 and ask for the Research department