Summary of EEOC’s Guidance on the use of Arrest and Conviction Records for Employment Purposes

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EEOC SealOver the past several months, the Equal Employment Opportunity Commission (EEOC) has taken a closer look at the use of arrest and conviction records when used for employment purposes.  The purpose of the EEOC’s Enforcement Guidance is to consolidate and update previous EEOC guidance documents regarding the use of such information as not to violate Title VII of the Civil Rights Act of 1964. This Guidance focuses on employment discrimination based on race and national origin and discusses the use of both arrest and conviction records.  The Guidance builds on the longstanding court decisions and existing guidance documents that the EEOC has issued over twenty years.  In light of an employer’s increased access to criminal history information, case law analyzing Title VII requirements for criminal record exclusions, and other developments, the Commission has decided to update and consolidate in this new Guidance all of its prior policy statements about Title VII and the use of criminal records in employment decisions.  Thus, this Enforcement Guidance will supersede the Commission’s previous policy statements on this issue.  The Commission intends for this Guidance to be used by employers considering the use of criminal records in their selection and retention processes.  You can obtain a complete copy of the Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 on the EEOC’s website.  There is also a link to a Q and A section on their website for additional information. 

Further information is also available through EBI’s partnership with Seyfarth Shaw LLP.  The firm has already published commentary and guidelines regarding the EEOC’s new enforcement.  You can reference this information by visiting their blog The EEOC Releases New Enforcement Guidance On Arrest and Conviction Records In The Hiring Process.   The following information is from the summary of the EEOC’s new Guidance. 

Summary of the EEOC Enforcement Guidance 

The Guidance discusses the differences between arrest and conviction records. 

  • The fact of an arrest does not establish that criminal conduct has occurred, and an exclusion based on an arrest, in itself, is not job related and consistent with business necessity. However, an employer may make an employment decision based on the conduct underlying an arrest if the conduct makes the individual unfit for the position in question. 
  • In contrast, a conviction record will usually serve as sufficient evidence that a person engaged in particular conduct. In certain circumstances, however, there may be reasons for an employer not to rely on the conviction record alone when making an employment decision. 

The Guidance discusses disparate treatment and disparate impact analysis under Title VII.

  • A violation may occur when an employer treats criminal history information differently for different applicants or employees, based on their race or national origin (disparate treatment liability)
  • An employer’s neutral policy(e.g., excluding applicants from employment based on certain criminal conduct) may  disproportionately impact some individuals protected  under  Title  VII,  and  may  violate  the  law  if  not job  related  and business consistent with necessity (disparate impact liability).
    • National data supports a finding that criminal record exclusions have a disparate impact based on race and national origin. The national data provides a basis for the Commission to investigate Title VII disparate impact charges challenging criminal record exclusions.
    • 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 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 three factors identified by the court in Green .v. Missouri Pacific Railroad, 549 F.2d 1 158 (8th Cir. 1977)). 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. (Although Title VII does not require individualized assessment in all circumstances, the use of a screen that does not include individualized assessment is more likely to violate Title VII.).

Compliance with other federal laws and/or regulations that conflict with Title VII is a defense to a charge of discrimination under Title VII.

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. 42 U.S.C.5 2000e-7.

The Guidance concludes with Best Practices for Employers.

Employment Background Investigations, Inc. (EBI) will provide additional information as it becomes available to employers.  Please refer to the complete text of the EEOC’s Enforcement Guidance for additional information.  EBI is committed to providing employers with valuable education and resources on changing legislation and cutting-edge and compliant solutions to meet federal, state, local and international mandatory requirements.  EBI will continue to update you on any further action or information available regarding this topic.  EBI is not providing legal advice or counsel and nothing provided within this post should be deemed as legal guidance or advice.  Readers should consult with their own legal counsel to determine their legal responsibilities or if they have questions on any information provided by EBI.