United States: EEOC Issues Enforcement Guidance On Employers' Consideration Of Arrest And Conviction Records In Employment Decisions

On April 25, 2012, the Equal Employment Opportunity Commission (EEOC) issued an "Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964" (the "Guidance"), which updates and supersedes the EEOC's prior policy statements (from 1987 and 1990) on this issue. This Alert highlights key points addressed by the Guidance and provides recommendations for employers to consider on how to handle criminal conduct records in light of the Guidance.

The EEOC's stance on the present Guidance is that it provides a more in-depth analysis on the use of arrest and conviction records in employment decisions, recognizing that many more employers utilize criminal background checks now than when the first policy statement was issued 25 years ago. Yet, the Guidance takes some positions that are more expansive than are required under current law. Employers should be aware that while the EEOC will rely on the Guidance and courts may look to it in their analysis of these issues, the Guidance is not law. In some areas, employers may want to apply a risk-and-benefit analysis to determine how best to proceed.

Arrests Versus Convictions

The Guidance makes a clear distinction between the use of arrest records and the use of conviction records, finding the latter generally permissible and the former almost always impermissible. It states that an arrest record does not establish that criminal conduct has occurred, and as such, a job exclusion "based on an arrest, in itself, is not job related and consistent with business necessity." However, the Guidance recognizes that an employer can properly make an employment decision based on the conduct underlying the arrest if the conduct makes the individual unfit for the job position in question. It is important to note that this position on arrests in the Guidance overstates the current status of federal law, which does not prohibit employment decisions based on arrests alone, subject to the concerns that could be raised in potential disparate treatment or disparate impact claims.

The Guidance states that convictions "usually serve as sufficient evidence that a person engaged in particular conduct." It also notes though that errors in records, use of outdated records or other reasons may lead an employer to question the validity of relying on a particular conviction record. While noting the permissibility of using conviction records in employment decisions, the Guidance recommends that employers "not ask about convictions on job applications and that, if and when they make such inquiries, the inquiries be limited to convictions for which exclusion would be job related for the position in question and consistent with business necessity." Though some states and localities have restrictions on if and when employers can ask applicants about convictions, the recommendation given by the Guidance in this area again overstates the current requirements under federal law. While legal risks are present in not adopting the EEOC's recommended best practice, business risks and practical issues exist with adopting it.

Disparate Treatment Claims

The Guidance addresses disparate treatment claims and reiterates that employers cannot treat individuals differently on the basis of their race, national origin or other protected bases. This is consistent with established standards for Title VII discrimination claims. In the context of arrest and conviction records, the Guidance notes there may be liability for a disparate treatment claim if evidence shows that an employer rejected an applicant of one race based on his criminal record, but hired a similarly situated applicant of a different race with the same criminal record. In other words, treating individuals differently solely on the basis of their race may lead to disparate treatment liability.

Disparate Impact Claims, Validation and Individualized Assessments

What may be viewed as more interesting and significant, the Guidance addresses disparate impact claims in which a plaintiff attempts to demonstrate that an employer's neutral policy or practice has the effect of disproportionately impacting individuals of a certain Title VII-protected group. In support of its position that criminal record exclusions have a disparate impact based on race and national origin, the EEOC in the Guidance cites arrest and incarceration statistics to show that African-Americans and Hispanics are arrested and incarcerated at rates disproportionate to their representation in the general population.

In defending against a disparate impact claim, an employer may want to establish that the criminal conduct exclusion was "job related and consistent with business necessity." The Guidance states two circumstances in which the EEOC believes employers can meet this standard: through validation of the employment screen being used or through development of a targeted screen focusing on an individualized assessment of excluded individuals.

The validation approach can be exceedingly challenging, and the Guidance is not particularly helpful in this area, basically noting that this approach is currently ineffective. As discussed in the Guidance, in order to use the validation approach, employers would need to consult the separate Uniform Guidelines on Employee Selection Procedures (the "Uniform Guidelines") to determine whether the employer's given employment screen could be validated after calculating its potential adverse and disparate impact. However, the Guidance states that the type of social science studies that would be needed to provide a framework to validate an employment screen in this context under the Uniform Guidelines—such as an analysis of the correlation between prior convictions and future workplace behavior—are "rare at the time of this drafting." Thus, while mentioning validation as a possible approach to support the use of a criminal conduct exclusion, the Guidance itself recognizes the ineffectiveness of this approach at this time.

As a result, the second approach—the development of a targeted screen with an individualized assessment—will likely be the focus for most employers in most situations. In order to demonstrate that it has developed a targeted screen, an employer would need to show that it considered these three factors at least: 1) the nature of the crime; 2) the time elapsed since the criminal conduct; and 3) the nature of the job at issue. In addition, an employer would need to demonstrate it provided an opportunity for an individualized assessment of people excluded by the screen to determine whether the screen as applied to the particular individual is, in fact, job related and consistent with business necessity. The Guidance states that the individualized assessment should consist of: 1) notice to the individual that he or she has been screened out because of a criminal conviction; 2) an opportunity for the individual to demonstrate that the exclusion should not be applied due to particular circumstances; and 3) consideration by the employer on whether the additional information provided by the individual warrants an exception to the exclusion.

However, even if an employer follows one of the Guidance's aforementioned recommended approaches, the Guidance states that a plaintiff can still prevail on a disparate impact claim by demonstrating there is a less discriminatory "alternative employment practice," which serves the employer's legitimate goals as effectively as the challenged practice, that the employer refused to adopt. The Guidance does not provide any examples or discussion of such an "alternative employment practice." While such a standard may be challenging both for a plaintiff to prove and for an employer to defend against, employers should still consider this issue when developing or implementing any new procedures in light of the Guidance.

Intersections with State and Other Federal Laws

The Guidance recognizes that certain industries have requirements under various federal laws that may exclude employment based on specific convictions and, as such, reiterates that these requirements are not preempted by Title VII—or the Guidance, which is intended to interpret Title VII requirements—as long as the employer does not implement a criminal conduct exclusion beyond the scope of such laws.

It is important to note that state and local laws sometimes extend beyond federal law requirements or the recommendations contained in the Guidance. Some states, such as New York and California, impose additional requirements and restrictions on the use of criminal conduct records—including limiting consideration of criminal conduct to certain types of jobs, considering the age of the individual at the time of the criminal offense and looking at any evidence of rehabilitation—beyond those required under federal law and those discussed in the Guidance. In addition, some localities (Philadelphia and Boston are examples) impose restrictions on the use of inquiring about criminal conduct (such as "ban-the-box" laws that restrict employers from asking on employment applications about criminal record history). Thus, employers should consider the state and local laws where they operate in addition to federal law and the EEOC Guidance.

Recommendations for Employers to Consider

While the Guidance addresses questions about the EEOC's current thinking on these issues, it may also lead employers to ask many of their own questions about the meaning of the Guidance and how to effectuate the changes it suggests.

Employers should consider eliminating polices or practices that exclude individuals from employment based on having any criminal record, as this would be directly counter to the approach taken by the Guidance. Rather than having such a broad policy, employers may want to seek legal counsel to develop a more tailored policy to screen individuals for criminal conduct in consideration of how such conduct may be job related and consistent with business necessity. This approach should take into account the factors mentioned in the Guidance—the nature of the criminal conduct, the time that has elapsed since the criminal conduct and the nature of the job at issue.

Since an individualized assessment would be needed as part of an employer's more targeted approach (assuming the validation approach will be ineffective), employers may want to seek legal counsel to determine how to develop or modify internal processes to provide notice to screened-out individuals and an opportunity for those individuals to show the inapplicability of the screen to their circumstances, as well as a method to determine whether such additional information warrants an exception to the screen.

If you have any questions about the EEOC's Guidance, ways to implement its recommendations or the use of criminal conduct records in employment decisions, please contact any of the attorneys in the Employment, Labor, Benefits and Immigration Practice Group or the attorney in the firm with whom you are regularly in contact.

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