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Littler attorney demystifies new EEOC criminal history guidance

On April 25, the EEOC issued updated guidance on the use of arrest and conviction records in hiring and employment decisions. The new guidance was developed after the commission held a meeting last July to consider potential revisions to the existing guidance on the same subject.

Barry A. Hartstein, partner and co-chair of the hiring and background check practice at Littler Mendelson’s Chicago Office, told CCH’s Employment Law Daily that “while the guidance restated certain long held rules in guiding employer conduct, a critical new focus is underscoring the importance of an ‘individualized assessment’ before disqualifying an applicant based on a criminal conviction record.”

Relying on criminal records. According to Hartstein, much of the guidance involves citation to statistics, studies and expert commentary to support the view that reliance on criminal history records has a disproportionate impact on African-Americans and Hispanics. The guidance also highlights the findings of studies that various criminal record databases employers may rely upon “include incomplete criminal records”i.e., an arrest may be shown but not that it was sealed and/or expunged — or records that are inaccurate.

The guidance further stresses that treating individuals in a protected class (e.g., African-American, Hispanic) differently based on an employer’s reliance on a criminal record is unlawful. Hartstein noted that the guidance “particularly focuses on concerns of “stereotyped thinking” and rejecting an applicant “based on racial or ethnic stereotypes about criminality — rather than qualifications and suitability for a position.”

Although federal law does not protect individuals with a criminal record from being discriminated against in the workplace, unlawful discrimination also may occur if an employer’s neutral policy has the effect of disproportionately screening out individuals based on race or national origin, Hartstein explained. He pointed to an example in the new EEOC guidance: a policy with a blanket exclusion on hiring an individual with a criminal record is viewed by the EEOC as unlawful.

Requesting criminal history information. “The EEOC recommends that employers not ask about convictions on job applications and, ‘if and when they make such inquiries, the inquiries be limited to convictions that are job related for the position in question and consistent with business necessity,’” Hartstein advised. “Assuming a policy has a disparate impact,” he said, “an employer can continue to rely on the three-factor test included in the EEOC’s guidance for the past 25 years by considering: (1) the nature and gravity of the offense or conduct; (2) the time that has passed since the offense and/or completion of the sentence; and (3) the nature of the job held or sought.” The new guidance, according to Hartstein, “adds some ‘flesh to the bones’ in describing how these factors should be used, but most importantly, takes the position that an individualized assessment should be made before disqualifying an individual for employment based on past criminal conduct.”

Individualized assessment. The attorney explained that the EEOC “has developed a three-part test in dealing with individualized assessment: (1) inform the applicant that he or she may be excluded based on the past criminal conduct; (2) provide an opportunity to the individual to establish that the exclusion should not apply; and (3) consider whether the individual assessment shows that the policy should not be applied to the applicant.” The commission also provides a laundry list of other individualized factors to consider.

Hartstein pointed to the EEOC’s acknowledgment that Title VII doesn’t necessarily require individualize assessment in all cases, and its statement that “the use of individualized assessments can help employers avoid Title VII liability by allowing them to consider more complete information on individual applicants or employees, as part of a policy that is job related and consistent with business necessity.”

“The EEOC continues to take a very hard line in consideration of arrest records, taking the view that an arrest record standing alone may not be used to deny an employment opportunity, and that the employer must examine the conduct underlying the arrest in making any employment decision,” Hartstein said.

Application of other laws. The guidance provides some leeway in employment decisions disqualifying an applicant based on reliance on other federal law or federal licensing requirements, according to Hartstein. However, state laws are preempted to the extent they violate Title VII, and an employer cannot defend its actions in such circumstances, he said.