Memphis Business Journal.Eeoc Issues Guidance On Using Arrests, Convictions In Employment Decisions.5.12
Friday, May 25, 2012EEOC issues guidance on using arrests,convictions in employment decisionsMemphis Business Journal by Barbara RichmanOn April 25, 2012, the Equal Employment Opportunity Commission approved, by a 4-1 vote,updated guidance regarding employers’ use of criminal background checks titled, “EnforcementGuidance on the Consideration of Arrest and Conviction Records in Employment Decisionsunder Title VII of the Civil Rights Act of 1964.” This guidance, which will impact mostorganizations in the United States, became effective on the date of approval. Employers canaccess the EEOC’s website, www.eeoc.gov, for the guidance, a question-and-answer document,and the agency’s press release.The press release includes the following introductory statement by the EEOC Chair JacquelineA. Berrien: “The new guidance clarifies and updates the EEOC’s longstanding policy concerningthe use of arrest and conviction records in employment, which will assist job seekers, employees,employers and many other agency stakeholders.”It also provides an overview of the guidance and outlines topics covered, including scenarios thatan employer might encounter when considering the history of current or prospective employees,best practices for employers and the applicability of disparate treatment and disparate impactanalysis under Title VII.The following questions and answers are based on topics covered in the guidance. While they areintended to provide insights into the EEOC’s considerations, it is suggested that employersexamine the overall document for more comprehensive information. Additionally, based on thecomplex nature of the guidance’s contents, it also is suggested that employers seek the input oflegal counsel in developing criminal background check policies and practices.1. Will a policy or practice that excludes everyone with a criminal record from employment offer liability protection? A policy or practice requiring an automatic, across-the-board exclusion from all employment opportunities because of any criminal conduct violates Title VII, as it does not focus on the dangers of particular crimes and the risks in particular positions.2. Can an employer be liable for its employment background check policy under Title VII’s disparate impact theory?
There is Title VII disparate impact liability where evidence shows that an employer’s policy or practice disproportionately screens out a Title VII-protected group (e.g. race, national origin, sex) and the employer does not demonstrate that the policy or practice is job related for the position in question and consistent with business necessity.3. How can an employer establish a “job related and consistent with business necessity” defense? One circumstance in which this defense can be established is if the employer develops a targeted criminal records screen that considers at least three factors: the nature of the crime, the time elapsed, and the nature of the job. The screen should be narrowly tailored to the position in question.4. Will an individualized assessment strengthen an employer’s defense? An employer’s defense can be strengthened if an individualized assessment accompanies the targeted screen. According to the guidance, an “individualized assessment generally means that an employer informs the individual that he 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; and considers whether the individual’s additional information shows that the policy as applied is not job related and consistent with business necessity.” If the individual does not respond to the employer’s attempt to gather additional background information, the employer may make its employment decision without the information.5. How does compliance with state laws and regulations impact employers? States and local jurisdictions may have laws and/or regulations that restrict or prohibit the employment of individuals with certain criminal conduct. These laws and regulations are preempted by Title VII if they “purport to require or permit the doing of any act which would be an unlawful employment practice” under Title VII. Therefore, if exclusionary policies or practices are not job related and consistent with business necessity, the fact that they were adopted to comply with state or local laws or regulations will not offer Title VII protections.6. Does Title VII preempt federal laws and regulations that govern hiring individuals with specific convictions? Title VII does not preempt federal restrictions that prohibit the employment of persons with records of certain crimes in particular industries or positions in the public and private sectors. For example, federal law excludes the employment of individuals convicted of specified crimes in the previous 10 years from working as an airport security screener.7. Can arrest records be used to deny employment opportunities? Since an individual’s arrest record does not establish that criminal conduct has occurred, that record standing alone may not be used to deny an employment opportunity. However, there may be circumstances when an employer may make an adverse employment decision based
on the conduct underlying an arrest if that conduct makes the individual unfit for the position in question. In a situation of this nature, it is the conduct, not the arrest, which is relevant for employment purposes.BARBARA RICHMAN is a senior consultant with HR Mpact, a Memphis human resourceconsulting firm, www.hr-mpact.com. She can be reached at (901) 685-9084, (901) 496-0462 email@example.com.