May 29, 2012
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Health Law Alert: Do Your Hiring Policies Need a Spring Cleaning? The EEOC Has Issued New Guidance on Employers’ Use of Criminal History in Employment Decisions
The U.S. Equal Employment Opportunity Commission (EEOC) has issued new enforcement guidance on employers’ use of arrest and conviction records in employment decisions. In light of this new guidance, employers that conduct criminal background checks on prospective employees should review their policies and practices to minimize the risk of discrimination claims.
The EEOC enforces Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex, or national origin. The EEOC guidance does not create new law, but rather updates and clarifies guidelines issued over 20 years ago. The guidance explains that in order to avoid discrimination claims, employers should not deny employment simply because an applicant has been arrested and that employers should not deny employment because of a criminal conviction unless the exclusion of the employee is job related for the position in question and consistent with business necessity. Employers must consider all of the facts surrounding an applicant’s criminal record and develop targeted screening processes. Failure to do so can be costly. Pepsi recently agreed to pay $3.13 million to settle a case brought by the Minneapolis EEOC office related to Pepsi’s former criminal background check policy.
Employers should note that this new guidance is not legally binding and courts can chose whether to defer to it in cases brought under Title VII. However, there is heightened EEOC scrutiny of employment decisions that discriminate on the basis of arrest or conviction records. Following the EEOC guidance will help employers reduce the risk of costly claims.
Disparate Treatment vs. Disparate Impact
First, disparate treatment may result if an employer treats prospective employees differently on the basis of comparable criminal records. For example, if an African American applicant and White applicant have the same conviction on their respective records, but they are treated differently in the hiring process, there is disparate treatment. In order to establish that disparate treatment has occurred, the applicant must show that race, national origin, or another protected characteristic was used by the employer during the review of the applicant’s criminal history in order to select that employee. The EEOC may look at inconsistencies in the hiring process, whether similar applicants were denied employment, or biased statements made by the employer.
Second, disparate impact discrimination may result if a policy or practice is neutral on its face but has an unintended disparate impact on individuals of a particular race or national origin. For example, African American and Hispanic men are arrested and convicted in numbers disproportionate to their representation in the population. Therefore, to have a blanket exclusion in an employers’ policies prohibiting hiring based on a criminal conviction, would have a disproportionate impact on African American and Hispanic men. The guidance does not prohibit employers from obtaining and using criminal background reports about job applicants and employees. It does, however, require employers to show that the use of such reports is “job related and consistent with business necessity.” An employer may demonstrate this by a consideration of the nature of the crime, the time elapsed since the criminal conduct occurred, the nature of the specific job in question, and allowing the applicant who is excluded by the screen the opportunity to show why she or he should not be excluded.
The Use of Arrests and Convictions
On the other hand, the EEOC considers conviction records to be reliable evidence that the underlying criminal conduct occurred, and therefore, employers may rely upon these records in limited circumstances where the exclusion is job related and consistent with business necessity. The EEOC notes that a policy excluding all individuals with criminal records likely would not be justifiable as “job related and consistent with business necessity,” and thus could violate Title VII.
The EEOC’s Proposed Best Practices
Other Action Employers Can Take
For more information, the EEOC website has provided a question and answer page.
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This article is provided for general informational purposes only and should not be construed as legal advice or legal opinion on any specific facts or circumstances. You are urged to consult a lawyer concerning any specific legal questions you may have.
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