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Title VII Liability for Considering Criminal Histories in Employment Decisions?

by Martin Salcedo, Esq. - The Human Equation on 5/21/2012
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The Equal Employment Opportunity Commission (EEOC) recently issued its Enforcement Guidance on employer use of arrest and conviction records in employment decisions under Title VII of the Civil Rights Act (Title VII). A survey cited by the EEOC found that 92% of responding employers subjected all or some of their job candidates to criminal background checks.

While Title VII does not prohibit an employer from requiring applicants or employees to provide information about criminal history, it does make it unlawful to discriminate on the basis of race, color, national origin, religion, or sex. So what is the link between the two?

According to the EEOC, African American and Hispanic men are arrested at a rate two to three times their proportion of the general population. Since an arrest does not establish that criminal conduct has occurred, an employment practice of excluding those solely because they have been arrested could violate Title VII.

There are generally two ways the use of criminal records can violate Title VII: treating people with the same criminal records differently because of a protected characteristic, such as race or color (disparate treatment discrimination), and unjustifiably excluding people sharing a protected characteristic despite uniformly applying exclusions based on criminal records (disparate impact discrimination). Both forms of discrimination are discussed by the EEOC.

The Enforcement Guidance does not purport to change the EEOC’s fundamental position on the topic. Rather, the EEOC states that it will continue its longstanding policy approach in this area by noting:

  • The fact that an arrest does not establish that criminal conduct has occurred and is not probative of criminal conduct, though an employer may act based on evidence of conduct that disqualifies an individual for a particular position.
  • Convictions are considered reliable evidence that the underlying criminal conduct occurred.
  • Criminal record exclusions have a disparate impact based on race and national origin, thereby providing a basis for the EEOC to investigate Title VII disparate impact charges.
  • A policy or practice that excludes everyone with a criminal record from employment will not be job related and consistent with business necessity and therefore will violate Title VII, unless it is required by federal law.

The Enforcement Guidance does, however, differ from the EEOC’s earlier policy statements in various ways, by providing, for example:

  • A detailed discussion of disparate treatment analysis, including examples of situations in which applicants with the same qualifications and criminal records are treated differently because of their race or national origin in violation of Title VII;
  • An explanation of how the EEOC analyzes the “job related and consistent with business necessity” standard for criminal record exclusions, including hypothetical examples interpreting the standard;
  • An explanation that employers may consistently meet the “job related and consistent with business necessity” defense if the employer adequately validates the criminal conduct exclusion for the position in question;
  • An explanation that employers may consistently meet the “job related and consistent with business necessity” defense if the employer develops a targeted screen considering at least the nature of the crime, the time elapsed, and the nature of the job, and the employer has a policy providing 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.
  • A statement that federal laws and regulations that restrict or prohibit employing individuals with certain criminal records provide a defense to a Title VII claim; and
  • A statement 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.

Finally, the Enforcement Guidance provides examples of best practices for employers who consider criminal records when making employment decisions, such as:

  • Eliminating policies or practices that exclude people from employment based on any criminal record;
  • Training managers and those responsible for employment related decisions about Title VII and its prohibition on employment discrimination;
  • Developing a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct;
  • Determining the specific offenses that may demonstrate unfitness for performing a job and identifying criminal offenses based on all available evidence, including an individualized assessment; and
  • Limiting inquiries to records for which exclusion would be job related for the position in question and consistent with business necessity.

Though Title VII violations involving the improper use of criminal records is not new, the Enforcement Guidance suggests that the EEOC’s heightened interest in such behavior is. Thus, employers would be wise to carefully review the Enforcement Guidance and adjust their behavior accordingly.

If you would like to learn more about potential employment-related liabilities, please view our library of online courses or contact us.

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