The EEOC yesterday released important new guidance for employers on the use of arrest and conviction records by employers under Title VII. You can read the guidance here as well as a short question-and-answer document too.
For employers in Connecticut, this new guidance only adds to the state-specific rules we have here in state and should leave most employers scratching their heads about yet another goverment regulation on something that had previously been cleared for use.
The EEOC guidance doesn’t go as far as some has feared by banning background checks entirely but it still suggests a plan of action that will be onerous for many employers.
Now, you may be asking how the EEOC is even involved in this issue given that their realm is typically discrimination cases. But the EEOC says that they are concerned about two types of actions which may violate federal law.
There are two ways in which an employer’s use of criminal history information may violate Title VII (“disparate treatment discrimination”). First, Title VII prohibits employers from treating job applicants with the same criminal records differently because of their race, color, religion, sex, or national origin.
Second, even where employers apply criminal record exclusions uniformly, the exclusions may still operate to disproportionately and unjustifiably exclude people of a particular race or national origin (“disparate impact discrimination”). If the employer does not show that such an exclusion is “job related and consistent with business necessity” for the position in question, the exclusion is unlawful under Title VII.
How can employer consistently meet the “job related and consistent with business necessity” defense? The EEOC suggests two situations:
- The employer validates the criminal conduct exclusion for the position in question in light of the Uniform Guidelines on Employee Selection Procedures (if there is data or analysis about criminal conduct as related to subsequent work performance or behaviors); or
- The employer develops a targeted screen considering at least the nature of the crime, the time elapsed, and the nature of the job … The employer’s policy then provides 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.
Of course, the EEOC also notes that such an individualized assessment is not required by Title VII “in all circumstances, the use of a screen that does not include individualized assessment is more likely to violate Title VII.”
As Jon Hyman, of the Ohio Employer’s Law Blog, is quick to note — some of this guidance may be overreaching by the EEOC. Nevertheless, employers would be wise to read it and consider implementing some of the best practices suggested by the EEOC. Among them:
- Eliminate policies or practices that exclude people from employment based on any criminal record.
- Train managers, hiring officials, and decisionmakers about Title VII and its prohibition on employment discrimination.
- Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct.
- Identify essential job requirements and the actual circumstances under which the jobs are performed.
- Determine the specific offenses that may demonstrate unfitness for performing such jobs.
- Identify the criminal offenses based on all available evidence.
- Determine the duration of exclusions for criminal conduct based on all available evidence.
- Include an individualized assessment.
- Record the justification for the policy and procedures.
- Note and keep a record of consultations and research considered in crafting the policy and procedures.
- Train managers, hiring officials, and decisionmakers on how to implement the policy and procedures consistent with Title VII.
- 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. Only use it for the purpose for which it was intended.