September 6th, 2011 | Pamela Wolf
The U.S. Equal Employment Opportunity Commission treated the U.S. Census Bureau to a short course on lawful inquiries into employment applicants’ criminal histories in a recently released informal discussion letter.
The letter focuses on the Bureau’s form BC-170, Census Employment Inquiry, which is used to gather information from job applicants. The form provides a warning to applicants about the Bureau’s application process: “If you have had a conviction of a violation of the law since age 18 for something other than a minor traffic violation it could be a basis for nonselection.” A question in Section F of the form asks the following:
During the last 10 years, have you been convicted, been imprisoned, been on probation, or been on parole? (Includes firearms or explosives violations, misdemeanors, and all other offenses. If “YES,” use item 32 to provide the date, explanation of the violation, place of occurrence, and the name and address of the police department or court involved.)
EEOC Legal Counsel, Peggy R. Mastroianni, writing on behalf of the Commission, said this language suggested that the screening method employed by the Bureau may be overly broad. “An applicant can be excluded from Census jobs for any convictions, including misdemeanors that have occurred since age 18,” she observed. “While the EEOC recognizes that the Census Bureau must select job applicants who will not pose an unacceptable risk of harm to the communities in which they will serve, it must do so in a way that does not run afoul of Title VII,” she cautioned.
Mastroianni pointed out that a pre-employment inquiry does not by itself run afoul of Title VII because that statute does not regulate inquiries by employers. But an employer’s use of requested pre-employment information can nonetheless amount to unlawful employment discrimination under Title VII. Therefore, covered employers cannot use such information to engage in unlawful disparate treatment or, in a way that results in a disparate impact and is not job related and consistent with business necessity, she wrote.
The EEOC attorney explained that excluding people from employment because they have conviction records might disproportionately affect individuals covered by EEO laws, including African-Americans and Hispanics, creating a disparate impact as a result. Consequently, “the Census Bureau needs to show that its exclusionary policies or practices are ‘job related and consistent with business necessity,’” she advised.
The legal standard for exclusions based on convictions, according to Mastroianni, is that “the criminal conduct is recent enough and sufficiently job related to be predictive of performance in the position sought, given its duties and responsibilities.” But if the Bureau excludes individuals who ‘“have had a[ny] conviction . . . since age 18 for something other than a minor traffic violation,’ however, it is highly doubtful that its screening methods will meet the job related and consistent with business necessity standard,” she predicted.
To make sure that applicants’ criminal history information is used in a manner consistent with Title VII, the Census Bureau should “narrow its criminal history inquiry so that it focuses on convictions that are related to the specific positions in question, and that have taken place in the past seven years, consistent with the federal government’s general employment application form, OF 306,” the EEOC attorney recommended. The Bureau should also educate and provide training to hiring officials on how to assess suitability for the particular jobs in question when evaluating applicants’ conviction records, Mastroianni suggested.
Mastroianni’s “short course” on criminal histories was directed to the Census Bureau, but all employers can benefit from what she had to say – especially in light of the EEOC’s renewed focus on criminal histories and convictions. Private employers, like the Census Bureau, want to avoid selecting job applicants who would pose an unacceptable risk of harm to coworkers, customers and others. They also want to do so in a way that will not expose them to the costly litigation of a disparate impact discrimination claim.
Last month I wrote about the Commission’s meeting in July on the use of arrest and conviction records as a barrier to hiring. It’s worth repeating that the EEOC’s guidance on this topic could use some updating – as this informal discussion letter demonstrates, employers, both public and private, are struggling to understand how and when questions related to applicants’ criminal histories are permissible.