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Employers beware when using arrest and conviction records in employment decisions, Pepper Hamilton attorney warns

Employers whose criminal conviction policies have a disparate impact on race and/or national origin will face a heavy burden in defending their policies before the Equal Employment Opportunity Commission, according to Pepper Hamilton LLP labor and employment partner Susan K. Lessack.

The Equal Employment Opportunity Commission (EEOC) approved on April 25, 2012 its first Enforcement Guidance (guidance) in more than 20 years on employers’ use of arrest and conviction records in making employment decisions.

As part of its E-RACE (Eradicating Racism and Colorism from Employment) initiative, the EEOC has focused recently on employment policies that prohibit or curtail hiring of applicants with criminal convictions. The EEOC had concluded that those policies have a “disparate impact” on African-American and Hispanic applicants, and has been pursuing claims against employers based on these kinds of policies.

The focal point of the guidance is the EEOC’s strong recommendation that, to defend against a showing that a criminal background policy has a disparate impact on African-Americans and Hispanics, employers should:

  • develop and use a “targeted screen” that takes into account the nature and gravity of the offense, how long ago the offense occurred, the completion of any sentence, and the nature of the job held or sough,
  • in addition to a targeted screen, conduct an individualized assessment of any applicant initially screened out based on a criminal conviction, to give him or her the opportunity to explain the particular circumstances, so employers can evaluate whether to make an exception to its criminal records policy based on the information provided by the applicant ,
  • avoid asking about convictions on employment applications; several states and municipalities, including Massachusetts and Philadelphia, already ban this practice,
  • refrain from asking about arrests or making arrests the basis of any employment decision, and
  • if challenged, be able to independently demonstrate that a refusal to hire an applicant based on a state law was job-related and consistent with business necessity. Even employers that are prohibited under state law from hiring applicants with certain convictions for certain jobs (e.g., working with children) are not necessarily insulated from attention from the EEOC.

In light of the EEOC issuing the Guidance and the commission’s increased scrutiny of employers’ criminal background check policies, Lessack recommends that employers:

  • provide training on the requirements of Title VII and the EEOC’s guidance to employees who administer the criminal background check process,
  • review their criminal background check policies and practices and, if necessary, revise them so that they take into account the nature and gravity of the offense, how long ago the offense occurred, the completion of any sentence, and the nature of the job held or sought, and
  • consider whether to adopt an individualized assessment of applicants as part of their criminal background policy.

Lessack says that although the recommendations in the guidance provide employers an opportunity to defend their criminal records policies if they use a targeted screen, the guidance imposes a particularly high burden on employers that receive a large volume of applications to engage in discussions with each applicant whose criminal record includes a conviction that would be disqualifying under the employer’s criminal background check policy. “Employers also are concerned that if they hire applicants with convictions who later commit a crime in the workplace, they could be liable for negligence in hiring,” she adds. “As with many employment decisions, administering a criminal background check policy involves balancing the risks.”