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Commission approves updated guidance on the use of criminal history in employment decisions

The U.S. Equal Employment Opportunity Commission (EEOC) on April 25 voted 4-to-1 to approve an updated enforcement guidance on the use of arrest and conviction records in employment decisions under Title VII of the Civil Rights Act of 1964. EEOC Chair Jacqueline A. Berrien, and Commissioners Stuart J. Isnhimaru, Chai Feldblum, and Victoria A. Lipnic, voted to approve the guidance, while Commissioner Constance S. Barker opposed the action.

The commission released the much anticipated guidance in conjunction with a question-and-answer (Q&A) document. Controversy developed earlier this month in anticipation of the meeting when Sen. Michael Enzi (R-Wyo), the senior Republican on the Senate HELP Committee, reportedly sent Berrien a letter criticizing the agency’s intended vote on the guidance without first sharing a draft with stakeholders.

Background. The guidance was developed after the commission held a meeting last July to consider potential revisions to the existing guidance on the use of criminal history information in employment decisions. “We had excellent testimony from two public meetings and hundreds of written comments submitted by a diverse group of commenters to inform our deliberations concerning the new guidance,” Berrien said in a statement. “The new guidance clarifies and updates the EEOC’s longstanding policy concerning the use of arrest and conviction records in employment, which will assist job seekers, employees, employers, and many other agency stakeholders.”

Although Title VII does not prohibit an employer from requiring applicants or employees to provide information about arrests, convictions, or incarceration, it is unlawful to discriminate in employment based on race, color, national origin, religion, or sex, according to the EEOC. The updated version released at the meeting builds on longstanding guidance issued by the EEOC over 20 years ago — three separate policy documents were issued in February and July 1987 under Chair Clarence Thomas, and in September 1990 under Chair Evan Kemp.

The commission also held public meetings on the subject in 2008 and 2011.

The new guidance. The updated guidance “is predicated on, and supported by, federal court precedent concerning the application of Title VII to employers’ consideration of a job applicant or employee’s criminal history and incorporates judicial decisions issued since passage of the Civil Rights Act of 1991,” according to the EEOC. It also updates relevant data, consolidates the commission’s prior policy statements on the issue into a single document, and illustrates how Title VII applies to various circumstances an employer might encounter when considering the arrest or conviction records of employees and applicants.

The updated guidance also includes a discussion of the following topics:

  • How an employer’s use of an individual’s criminal history in making employment decisions could violate the prohibition against employment discrimination under Title VII;
  • Federal court decisions analyzing Title VII as applied to criminal record exclusions; The differences between the treatment of arrest records and conviction records;
  • The applicability of disparate treatment and disparate impact analysis under Title VII;
  • Compliance with other federal laws and/or regulations that restrict and/or prohibit the employment of individuals with certain criminal records; and
  • Best practices for employers.

What does the new guidance mean for employers? To understand how the updated guidance will affect employers, CCH reached out to Employment Law Daily Advisory Board Member Susan L. Nardone, Director of Employment Law at the Newark firm of Gibbons, PC. She said the new guidance requires employers to examine and revise their policies on criminal background checks.

According to Nardone, employers’ current policies likely take into consideration the three factors described in the 8th Circuit’s 1977 decision in Green v Missouri Pacific Railroad — the nature of the offense, the time period that has elapsed since the offense was committed, or the sentence completed, and the relationship to the job at issue. She noted that prior EEOC guidance addressed this and required an employer to show that the exclusion of an applicant or employee for a criminal conviction was job-related and consistent with business necessity.

The new guidance, she pointed out, “focuses heavily on concerns about disparate impact on certain protected categories — namely race and national origin.” A criminal background check policy resulting in a disparate impact on a protected class violates Title VII, unless the employer is able to show that the exclusion is job-related and consistent with business necessity. The new guidance focuses on how the employer can make this showing, she said.

Criminal history inquiries. The EEOC recommends that employers should not ask about criminal convictions on job applications, she noted. However, the commission does not indicate when employers can, or should ask, such questions. Instead, the new guidance suggests that criminal inquiries should come only after the employer is “knowledgeable about the applicant’s qualifications and experience” and, even then, the inquiry should be limited to “convictions for which exclusion would be job related for the position and consistent with business necessity.”

Targeted exclusions. “After much discussion, it appears that the EEOC now advocates for a targeted criminal background screen followed by an individualized assessment,” Nardone observed. “This targeted screen takes into account the nature of the crime, the time elapsed and the nature of the job, three factors enunciated long ago by the Green court.” In considering the nature of the offense, the EEOC suggests that employers should look at the harm caused by the crime, the legal elements, and the severity of the offense. Nardone noted that the commission offers no specific guidance on the appropriate time period (time elapsed since the conduct, conviction or completion of sentence), indicating that that this factor depends on the facts and circumstances, but the commission does suggest that recidivism rates may provide guidance. As to the nature of the job component, the EEOC recommends that employers consider the essential functions and duties of the job and the environment in which it is performed.

“Targeted exclusions ‘guided by the Green factors’ must still pass muster and the employer has to have some basis for drawing a connection between the crime and its importance to the job, such as ‘fact-based evidence, legal requirements, and/or relevant and available studies,’” Nardone explained. She cited the example of a policy that excludes an applicant convicted of theft or dishonesty for a position in which the applicant would have access to personal, financial information or money where the conviction occurred in the four years prior to application for the job — this may be an appropriate targeted exclusion if the employer can explain, with reference to some fact or study, why the policy was adopted. The examples provided in the new guidance include national criminal data and recidivism research, Nardone said.

Applicant opportunity to explain. When an applicant is excluded from hire by a targeted exclusion, the new guidance recommends that the employer inform the applicant of the outcome and give him/her the opportunity to address why the exclusion should not apply, relying on individualized evidence provided by the applicant, Nardone explained. The EEOC also describes what that evidence might look like. “Here the EEOC suggests that if the explanation offered by the applicant is sufficient to allay the concerns that supported the targeted the exclusion, the employer cannot fall back on the exclusion because it was not job-related and consistent with business necessity in this case,” she explained.

Greater analysis required. Nardone also observed that the EEOC offers a number of best practices. “While many employers no longer have policies that exclude people from employment for any criminal conviction and, in fact, incorporate the Green factors, the new guidance requires greater analysis by employers,” she said “The added step of an individualized assessment provides the greatest protection.”