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EEOC guidance on use of arrest and conviction records in employment may need updating in light of criminal justice system realities

August 4th, 2011  |  Pamela Wolf

Is it time for the EEOC to revise its guidelines on the use of criminal arrest and conviction records in employment? That question was explored at the Commission’s meeting on July 26. Given the well-documented, high incarceration rates of blacks and Hispanics compared to whites, some say updated guidance is necessary to avoid the risk that these records will unlawfully preclude disproportionately greater numbers of those minorities from employment.

Juan Cartagena, President and General Counsel, Latino Justice, told the EEOC in written testimony prepared for the meeting that criminal record checks and the use of arrest and convictions to bar employment “place inordinate faith on the bona fides of our broken criminal justice system.”

Cartagena pointed out that in the employment context, “the right to be free from discrimination and to be judged on the merits” is centrally at risk. “Yet without a careful scrutiny of how criminal justice racial/ethnic disparities infect employment decisions, the EEOC . . . risks conditioning the enjoyment of this right on a false premise – that law enforcement and criminal justice systems produce racially and ethnically neutral outcomes,” he said.

According to Cartagena, “Without new EEOC guidelines that address the proliferation of mass incarceration and the concomitant proliferation of criminal record databases, the use of the pretext of a criminal history may shut out a sizeable part of Black and Latino employees – and all without a clear balancing of the rights of employers to have a safe environment and right of employees and applicants to be judged on the merits.”

Yet, on the employer side, Barry Hartstein, Shareholder at Littler Mendelson, P.C., observed in his written testimony that employers use criminal background checks for a wide variety of reasons and/or for particular types of jobs, “including concerns of public safety involving employees, safeguarding property and/or positions of trust, and certain industries in which such background checks are mandated.” Hartstein said it was his experience that “criminal background checks never have been designed as an exclusionary tool to circumvent our laws prohibiting discrimination in the workplace.”

Looking at the issue from Cartagena’s point of view, use of criminal background checks to make employment decisions may inherently result in a disparate impact against minorities because of the broken criminal justice system that has itself resulted in a disparate adverse impact on minorities. You can add to that the fact that criminal background checks also serve as a handy pretext for an employer that wants to discriminate – there is an obvious potential for disparate treatment discrimination. And of course, there is the added problem that background checks are not always reliable and accurate.

Hartstein, however, believes the EEOC’s current guidelines “provide the necessary flexibility to address concerns of disparate treatment and disparate impact.” He urged the Commission to “take care in implementation of any revised guidelines that create significant additional expense to an employer’s operations.”

Among Harstein’s several recommendations is that the EEOC reaffirm an approach outlined in July 1987 agency guidance that permits employers to use more regional or local criminal conviction statistics (as opposed to national) to show that blacks and Hispanics are not convicted at disproportionately higher rates. Alternatively, employers might use national, regional, or local data on conviction rates for a specific crime targeted in the employer’s criminal conviction policy – if the data shows no adverse impact as to that crime, then a no-cause determination would be appropriate. The employer could also use applicant flow data to show that its criminal conviction policy has not resulted in a disproportionately high number of blacks and Hispanics being excluded from employment.

While this approach makes sense, one would also think that guidance written some 24 years ago could stand some updating. The EEOC has yet to indicate that it will or will not update its existing guidance.

While employers already must negotiate a cumbersome maze of state and federal laws governing criminal arrest and conviction records and understandably chafe at the thought of facing additional compliance concerns, more clarity on the federal front should help. Likewise, spelling out the ways in which employers may permissibly rely on criminal records will better inform applicants of their rights under Title VII – they are, after all, where the rubber meets the road in terms of enforcement.

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