Insight Considering Arrests and Conviction Records in Employment Decisions

Implementing an effective hiring process is critical to the success of any business. Traditionally, background checks have been a core component of such a process. The Equal Employment Opportunity Commission (EEOC), the federal agency responsible for administration of federal anti-discrimination laws, has issued new enforcement guidance regarding the use of arrests and convictions in the hiring process. This newsletter will summarize the EEOC’s guidelines and offer some suggestions for employers to reduce the risk of employment related claims.

Summary of Guidelines

While having a criminal history is not protected under any anti-discrimination statute, liability may lie where an employer’s reliance on a criminal record results in treating the employee differently due to his/her protected status. For example, a violation may occur when an employer treats criminal history information differently for different applicants or employees based on their race or national origin. This is commonly referred to as disparate treatment liability.

However, liability may also lie where a facially neutral policy has a disparate impact on members of a protected group. Under this theory of liability, an employer’s neutral policy (e.g., excluding applicants from employment based on certain criminal conduct) may disproportionally impact some individuals who are protected under Title VII and thus, may violate the law if the policy is not job related and consistent with business necessity. This analysis is commonly referred to as disparate impact liability. Employers therefore must ensure that their policies regarding the use of criminal records are job related and consistent with business necessity.

In determining whether a policy meets these criteria, the EEOC emphasizes that arrests and convictions must be treated differently. With respect to arrests, an arrest is not sufficient to deny employment, but an employer may make an employment decision based upon the conduct underlying the arrest if it makes the applicant unfit for the job. Employers should focus on the conduct, not the arrest, meaning the conduct can be considered if it would be sufficient to deny employment if the applicant had not been arrested.

Conviction records tend to be more reliable, and therefore, may be acceptable grounds for denying employment. However, as a best practice, the EEOC recommends that because employers are more likely to objectively assess the relevance of a conviction if they learn of that fact after they know the applicant’s qualifications, employers should not ask about convictions on job applications. If and when employers make such inquiries, the inquiries should be limited to convictions for which exclusion would be job related for the position in question and consistent with business necessity.

Generally, employers will be able to meet the “job related and consistent with business necessity” defense if they develop a screening process where an individualized assessment is conducted. This assessment should include consideration of the nature of the crime, the time elapsed, and nature of the job. The individualized assessment generally means that an employer informs the individual that he/she may be excluded because of past criminal conduct; provides an opportunity to the individual to demonstrate that the exclusion does not properly apply to him/her; and considers whether the individual’s additional information shows that the policy as applied is not job related and consistent with business necessity.

Regarding the nature of the crime, an employer should consider the harm it caused, e.g., theft causes property loss; the legal elements involved, e.g., felony theft involves deception, threat, or intimidation; and whether it was a felony or misdemeanor. As for the time elapsed, while permanent bans for any offense are not consistent with business necessity, only a case-by-case determination that might involve studies on how much the risk of recidivism declines over time can determine whether the duration of an exclusion will be sufficiently tailored to satisfy the business necessity standard. Finally, the third criteria, the nature of the job sought, should involve identification of the essential functions of the job, the level of interaction with co-workers and others, the environment in which the job duties will be performed, and the amount of oversight involved.

The EEOC’s guidance states that individual assessments are not required in all cases, but can help employers avoid Title VII liability by allowing them to consider more complex information on applicants. The individual’s showing may include information that he or she was not correctly identified in the criminal record, or that the record is otherwise inaccurate. Other relevant individualized evidence includes:

• The nature of the job held or sought.
• The facts or circumstances surrounding the offense or conduct.
• The number of offenses for which the individual was convicted.
• Evidence that the individual performed the same type of work, post-conviction, with the same or different employer, with no known incidents of criminal conduct.
• The length and consistency of employment history before and after the offense or conduct.
• Rehabilitation efforts, e.g., education/training.
• Employment or character references and any other information regarding fitness for the particular position.
• Whether the individual is bonded under a federal, state, or local bonding program.

If the applicant does not cooperate with the employer’s efforts to gather information, a decision may be rendered with the information the employer was able to gather. While not mandatory, the EEOC does note that a screening process with an individual review will be less likely to violate applicable law. In sum, blanket exclusions based either on arrests or convictions are strongly discouraged.

Employer Best Practices

The EEOC sets forth examples of best practices for employers that are considering criminal record information when making employment decisions. These best practices include the following:

Eliminate policies or practices that exclude people from employment based solely on a criminal record.

Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct. The EEOC advises that employers should (i) identify central job requirements and the actual circumstances under which the jobs are performed; (ii) determine the specific offenses that may demonstrate unfitness for performing such jobs; (iii) determine the duration of exclusions for criminal conduct based on all available evidence; (iv) allow for individualized assessment; (v) record the justification for the policy and procedures; (vi) note and keep a record of consultations and research considered in crafting the policy and procedures.

• Train managers, hiring officials, and decision makers on how to implement screening policies and procedures consistent with applicable anti-discrimination statutes.
• When asking questions about criminal records, limit inquiries to records for which exclusion would be job related for the position in question and consistent with business necessity.
• Keep information about applicants’ and employees’ criminal records confidential. Such information should only be used for the purpose for which it was intended and should only be disclosed to those individuals with a need to know.

A full copy of the EEOC’s guidance can be found here.

For more information about the new EEOC guidelines or to contact a member of our employment group or call 208.344.6000.