Arrest and Conviction Records - EEOC Takes a Stand

The EEOC on April 25, 2012 issued its Enforcement Guidance, updating its previous position on an employer’s use of arrest and conviction records in making employment decisions. The Enforcement Guidance was issued without prior public comment and does not have the force of law, but it does indicate where the EEOC will likely head when charges are filed alleging discrimination based on the employer’s use of past criminal records in making employment decisions.

Differences Between Arrest and Conviction Records

The fact of an arrest does not establish that criminal conduct has occurred, and an exclusion based on an arrest, in itself, is not job related and consistent with business necessity. However, an employer may make an employment decision based on the conduct underlying an arrest if the conduct makes the individual unfit for the position in question.

In contrast, a conviction record will usually serve as sufficient evidence that a person engaged in particular conduct.

Disparate Treatment and Disparate Impact Analysis Under Title VII and Defenses Available to Employers

Disparate Treatment. A violation may occur when an employer treats criminal history information differently for different applicants or employees, based on their race or national origin.

Disparate Impact. An employer’s neutral policy, such as excluding applicants from employment based on certain criminal conduct, may disproportionately impact some individuals protected under Title VII and may violate the law if not job related and consistent with business necessity.

Employer Defenses:

Empirical Validation. The employer may validate the criminal conduct exclusion for the position in question in light of the EEOC’s Uniform Guidelines on Employee Selection Procedures. The use of these Guidelines, however, is quite expensive and is often of little value.
Targeted Screen with Individualized Assessment. The employer may develop a targeted screen, considering at least the nature of the crime, the time elapsed and the nature of the job. The employer’s policy should then provide an opportunity for an individualized assessment for those people identified by the screen to determine if the policy, as applied, is job related and consistent with business necessity.
Compliance with Federal Laws. Compliance with other federal laws and/or regulations that conflict with Title VII is a defense to a charge of discrimination under Title VII. But it is important to note that state and local laws or regulations are preempted by Title VII if they require or permit acts that would be an unlawful employment practice under Title VII.

What This Means for Employers

Although the EEOC’s enforcement guidance does not have the force of law, employers should heed the Guidance and consider:

Reviewing employment applications for questions about arrest and conviction records;
Reviewing policies relating to arrests and convictions;
Training management on the proper use of criminal history information;
Ensuring that third parties conducting background checks are complying with the Guidance;
Justifying any exclusion based on criminal history in light of nature of the crime, the time elapsed and the nature of the job; and

Allowing for individualized assessments rather than applying blanket exclusions.

Should you have questions, please contact your regular Hall Render attorney or a member of our Employment and Labor Section:
Steve Lyman slyman@HallRender.com
Sam DeShazer sdeshazer@HallRender.com
John Ryan jryan@HallRender.com
Michael Kim mkim@HallRender.com
Robin Sheridan rsheridan@HallRender.com
Bruce Bagdady bbagdady@HallRender.com
Craig Williams cwilliams@HallRender.com
Travis Meek tmeek@HallRender.com
Larry Jensen ljensen@HallRender.com
Jennifer Gonzalez jgonzalez@HallRender.com
Carrie Turner cturner@HallRender.com
Jon Bumgarner jbumgarn@HallRender.com
Kevin Stella kastella@HallRender.com
Dana Stutzman dstutzma@HallRender.com
Jon Rabin jrabin@HallRender.com
Jennifer Richter jrichter@HallRender.com
Natalie Dressel ndressel@HallRender.com
Mary Kate McNamara mmcnamara@HallRender.com