How do the new U.S. Equal Employment Opportunity Commission guidelines on criminal background checks affect your hiring practices? Actually, the guidelines highlight an already well-established rule under Title VII case law that the use—or rather misuse—of arrest and conviction records can lead to claims of unlawful discrimination under both disparate treatment and disparate impact theories. What the EEOC adds to the discussion with these guidelines, however, is additional clarity regarding the procedures employers should implement when using criminal records if they wish to avoid claims of employment discrimination.
Regarding the issue of disparate treatment, employers can run afoul of the federal law when they refuse to hire, say, an African American with a criminal record, despite having previously hired a Caucasian with a comparable criminal record. And even when applicants are not individually targeted for their criminal records, the theory of disparate impact shows us how a neutral hiring practice can disproportionately impact protected classes. For example, a blanket refusal to hire all candidates with felony drug convictions will necessarily impact African Americans and Hispanics more adversely than Whites. However, while drug use among Whites, African Americans, and Hispanics is statistically similar, the rate at which African Americans and Hispanics are arrested and convicted of those same drug offenses far exceeds the rate at which Whites are convicted. Statistics like these have been used to support successful disparate impact claims for years, but with the new EEOC guidance, we finally have more clarity on what employers may do to minimize their exposure should the elect to disqualify a candidate on the basis of a criminal background check.
To avoid complications under Title VII, employers must not exclude candidates simply because they have convictions on their records. (Incidentally, California already prohibits the consideration of arrest records.) Rather, employers should determine whether the refusal to hire an individual candidate on the basis of the conviction is "job-related and consistent with business necessity". The EEOC outlines two options. If relevant statistics are available regarding the relationship between criminal conduct and subsequent work performance, employers may establish more general policies for criminal conduct using the Uniform Guidelines on Employee Selection Procedures in the Code of Federal Regulations. Given the complexity of this option, however, employers will more likely pursue the second option, which permits an individualized, targeted screen using the following three factors, referred to as the Green factors: (1) the nature and gravity of the offense; (2) how long ago the candidate committed the offense; and (3) the job duties of the position sought by the candidate. The employer would then need to permit those excluded by the screen an opportunity for an individualized assessment to determine whether the policy, as applied, meets the standard of "job related and consistent with business necessity."
Regarding the employer’s application of the Green factors, the guidelines stress that these factors must be considered in light of the individual circumstances in each case. For example, regarding the first factor (i.e., the nature and gravity of the offense), the EEOC clarifies that employers should look at whether each crime was a felony or misdemeanor. Was the harm to property or person? Does the crime itself require merely reckless conduct or must the prosecutor prove intent to commit the crime? As for the second factor (i.e., how long ago it happened), applicants with records that show juvenile indiscretions have been set aside may warrant a second chance, especially if the applicant has been clean for several years. Even screens that refuse employment for those convicted of violent crimes may be suspect if the applicant has been clean for more than, say, 40 years. (Of course, in California, employers who use an outside screening agency may look no further back than seven years.) With regard to the third and final factor (i.e., the job duties), employers will want to look at factors such as how much supervision there is for the job, required interactions with coworkers or other vulnerable individuals, where the job will be performed. Certainly, work performed in customers’ homes would raise more concern. Linking the criminal conduct to the essential functions of the job may help employers spell out the legitimacy of their screen.
While a targeted screen under the Green factors may be narrowly tailored enough to stand on its own, employers are well advised to go an additional step with an individualized assessment that permits the applicant an opportunity to show that the exclusion does not properly apply to him or her. The applicant could show the record is not accurate or, perhaps, the facts or circumstances of the offense warrant special consideration. Alternatively, the applicant could show he or she performed similar work after the conviction for someone else and without incident. Perhaps the applicant has gone through rehabilitation or pursued additional education and training. Perhaps he or she can provide additional character references or has been bonded under a federal, state, or local bonding program. If, however, the employer invites the applicant to provide this information and the applicant is unresponsive, the employer is free to make its employment decision without such an inquiry.
In light of these new guidelines, the EEOC will be looking to ensure employers have undergone this analysis. Employers should absolutely retain records of all analyses they do in accordance with these guidelines. For additional information regarding these guidelines, please feel free to contact a EG Helpline consultant anytime.
Article by Mark Nelson, J.D., Senior Helpline Consultant - Employers Group