EEOC Enforcement Guideline 915.002, Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions.
The EEOC is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person’s race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability, or genetic information. The commission investigates complaints of discrimination; however, it does not create law. Hence, this new guideline outlines the view of the commission when it is conducting discrimination investigations.
Specifically, Title VII (Civil Rights Act of 1964) prohibits intentional discrimination based on race, color, religion, sex, or national origin.
Title VII also prohibits employers from using neutral tests or selection procedures that have the effect of disproportionately excluding persons based on race, color, religion, sex, or national origin, where the tests or selection procedures are not “job-related and consistent with business necessity.” This is called “disparate impact” discrimination.
Disparate Impact Discrimination and Criminal Records.
A potential violation of Title VII can occur when an employer’s neutral policy or practice has the effect of disproportionately screening out a Title VII-protected group and the employer fails to demonstrate that the policy or practice is job-related for the position in question and consistent with business necessity.
Nationally, African Americans and Hispanics are arrested in numbers disproportionate to their representation in the general population. In 2010, 28% of all arrests were of African Americans, even though African Americans only comprised approximately 14% of the general population. In 2008, Hispanics were arrested for federal drug charges at a rate of approximately three times their proportion of the general population. Moreover, African Americans and Hispanics were more likely than Whites to be arrested, convicted, or sentenced for drug offenses. African Americans and Hispanics also are incarcerated at rates disproportionate to their numbers in the general population.
The new guideline lets employers know of the Commission’s theory of disparate impact by use of criminal records.
Implications:
Previous best practices and recommendations is that employers should not have blanket policies that prohibit employment by those with any form of criminal convictions.
Rather, policy should call for an individual assessment looking at the specifics of each applicant and how this criminal record is job-related and consistent with business necessity.
Two circumstances in which the Commission believes employers will consistently meet the “job related and consistent with business necessity” defense are as follows:
• The employer validates the criminal conduct screen for the position in question per the Uniform Guidelines on Employee Selection Procedures (Uniform Guidelines) standards (if data about criminal conduct as related to subsequent work performance is available and such validation is possible); 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 three Green factors), and then provides an opportunity for an individualized assessment for people excluded by the screen to determine whether the policy as applied is job related and consistent with business necessity.
The validation process is difficult and complex. The “Green Factors” discussed refer to the court case Green v. Missouri Pacific Railroad Company. The “Green factors” are:
(1) The nature or gravity of the offense or conduct;
(2) The time elapsed since the conviction and/or completion of the sentence; and
(3) The nature of the job sought or held.
Detailed Discussion of the Green Factors and Criminal Conduct Screens
1. The Nature and Gravity of the Offense or Conduct.
Careful consideration of the nature and gravity of the offense or conduct is the first step in determining whether a specific crime may be relevant to concerns about risks in a particular position. The nature of the offense or conduct may be assessed with reference to the harm caused by the crime (e.g., theft causes property loss). The legal elements of a crime also may be instructive. For example, a conviction for felony theft may involve deception, threat, or intimidation. With respect to the gravity of the crime, offenses identified as misdemeanors may be less severe than those identified as felonies.
2. The Time that Has Passed Since the Offense, Conduct and/or Completion of the Sentence.
Employer policies typically specify the duration of criminal conduct exclusion. While the Green court did not endorse a specific timeframe for criminal conduct exclusions, it did acknowledge that permanent exclusions from all employment based on any and all offenses were not consistent with the business necessity standard. Subsequently, the court noted that the plaintiff might have survived summary judgment if he had presented evidence that “there is a time at which a former criminal is no longer any more likely to recidivate than the average person . . . .” Thus, the court recognized that the amount of time that had passed since the plaintiff’s criminal conduct occurred was probative of the risk he posed in the position in question.
Whether the duration of an exclusion will be sufficiently tailored to satisfy the business necessity standard will depend on the particular facts and circumstances of each case. Relevant and available information to make this assessment includes, for example, studies demonstrating how much the risk of recidivism declines over a specified time.
3. The Nature of the Job Held or Sought.
Finally, it is important to identify the particular job(s) subject to the exclusion. While a factual inquiry may begin with identifying the job title, it also encompasses the nature of the job’s duties (e.g., data entry, lifting boxes), identification of the job’s essential functions, the circumstances under which the job is performed (e.g., the level of supervision, oversight, and interaction with co-workers or vulnerable individuals), and the environment in which the job’s duties are performed (e.g., out of doors, in a warehouse, in a private home). Linking the criminal conduct to the essential functions of the position in question may assist an employer in demonstrating that its policy or practice is job related and consistent with business necessity because it “bear[s] a demonstrable relationship to successful performance of the jobs for which it was used.”
Determining Whether a Criminal Conduct Exclusion Is Job Related and Consistent with Business Necessity.
To establish that a criminal conduct exclusion that has a disparate impact is job related and consistent with business necessity under Title VII, the employer needs to show that the policy operates to effectively link specific criminal conduct and its dangers, with the risks inherent in the duties of a particular position.
The individualized assessment would consist of notice to the individual that he has been screened out because of a criminal conviction; an opportunity for the individual to demonstrate that the exclusion should not be applied due to his particular circumstances; and consideration by the employer as to whether the additional information provided by the individual warrants an exception to the exclusion and shows that the policy as applied is not job related and consistent with business necessity.
Depending on the facts and circumstances, an employer may be able to justify a targeted criminal records screen solely under the Green factors. Such a screen would need to be narrowly tailored to identify criminal conduct with a demonstrably tight nexus to the position in question. Title VII thus does not necessarily require individualized assessment in all circumstances. However, the use of individualized assessments can help employers avoid Title VII liability by allowing them to consider more complete information on individual applicants or employees, as part of a policy that is job related and consistent with business necessity.
Compliance with federal laws and/or regulations
The guideline recognizes that there are a variety of federal laws and regulations that prohibit employment by those with various specific criminal convictions. Those federal laws in most cases supersede Title VII.
Compliance with State and local laws and/or regulations
Unfortunately, employers seem to be placed in a Catch-22 scenario when they comply with various State and local laws and yet could be found to violate Title VII.
States and local jurisdictions also have laws and/or regulations that restrict or prohibit the employment of individuals with records of certain criminal conduct. Unlike federal laws or regulations, however, state and local laws or 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 an employer’s exclusionary policy or practice is not job related and consistent with business necessity, the fact that it was adopted to comply with a state or local law or regulation does not shield the employer from Title VII liability.
Employer Best Practices
The following are examples of best practices as outlined in the guidance, for employers who are considering criminal record information when making employment decisions.
General
• Eliminate policies or practices that exclude people from employment based on any criminal record.
• Train managers, hiring officials, and decision makers about Title VII and its prohibition on employment discrimination.
Developing a Policy
• 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 decision makers on how to implement the policy and procedures consistent with Title VII.
Questions about Criminal Records
• 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.
Confidentiality
• Keep information about applicants’ and employees’ criminal records confidential. Only use it for the purpose for which it was intended.
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