EEOC Guidlines for Use of Arrest and Conviction Records in Employment Decisions

On April 25, 2012, the United States Equal Employment Opportunity Commission (EEOC) released an enforcement guideline addressing the consideration of arrest and conviction records in employment decisions. The guidance document, while lacking the force of law or promulgated regulation, provides an elaborate analysis of how an employer’s use of seemingly neutral criteria can result in an allegation of disparate treatment or disparate impact discrimination. It has become commonplace for employers to utilize arrest and conviction records in evaluating candidates for employment or retention. Though a policy regarding consideration of arrest and conviction records may be neutral on its face, the discriminatory application of the policy, or the failure to properly document the job relatedness of the policy, may subject an employer to civil liability.
It is important to note that there is no law prohibiting the consideration of arrest or conviction records in employment decisions; however, as with any other factor behind an employment decision, the consideration of such records should not be impacted in any way by a protected characteristic of the candidate. “Disparate treatment” discrimination occurs when an employer treats one candidate or employee differently than another, based on a protected characteristic such as race, color, religion, sex, or national origin. For example, if a male applicant and a female applicant have applied for the same position and criminal background checks on the applicants reveal identical convictions for a theft that occurred three years ago, the employer may not excuse the conviction for one applicant but not the other, if that decision is based on the applicant’s sex.
“Disparate impact” discrimination occurs when an employer’s neutral policy disproportionately impacts a protected class. For example, let’s say Employer “A” has a “neutral” policy that disqualifies all applicants with a prior conviction for disorderly conduct. If only 5% of A’s white applicants are disqualified by the policy, and 40% of A’s black applicants are disqualified by the policy, the employer may still face liability under Title VII, as the policy has a “disparate impact” on black applicants. While this may seem unfair to the employer – they did, after all, draft a racially neutral policy – the law provides a defense which protects employers from liability when the policy is both “job related … and consistent with business necessity.” 42 U.S.C. § 2000e-2(k)(1)(A)(i).
EEOC’s guidance document cites Green v. Missouri Pacific Railroad, an Eighth Circuit case from 1975. 523 F.2d 1290. The circuit court established three factors to guide an analysis of whether a requirement or policy was “job related and consistent with business necessity,” which included (1) the type of offense or conduct; (2) the time since the conduct or completion of the sentence imposed for the conduct; and (3) the relation between the job sought and the conduct. To avoid liability for disparate impact discrimination based on the use of a neutral policy regarding criminal history records, EEOC recommends either (1) employer validation of the criminal conduct exclusion for the position, following established EEOC guidelines, or (2) a targeted screen of applicants which considers the three factors from Green and allows for an individualized assessment for persons identified by the screen.
Employers are encouraged to contact a firm or attorney specializing in employment law to ensure their current hiring practices do not expose them to unnecessarily liability under Title VII. The use of criminal history records is not prohibited by law, but an employer must be aware of the risks present in using such information. Allegations of disparate treatment or disparate impact discrimination may be prevented through careful analysis, documentation, and application of a neutral policy for the use of this information.

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