By Rachel K. Mulloy
On April 25, 2012, the United States Equal Employment Opportunity Commission (EEOC) issued Guidance regarding the use of criminal records in employment decisions under Title VII of the Civil Rights Act of 1964. The Guidance discusses whether an employer’s use of criminal history violates Title VII, focusing specifically on disparate impact claims based on neutral screening policies and practices that have the effect of disproportionately screening out a group protected under Title VII. While having a criminal history is not a protected category under Title VII, given the increase over the past 20 years of people in the working-age population who have criminal records and given national data finding criminal record exclusions have a disparate impact based on race and national origin, the EEOC is concerned that using criminal records to evaluate employees could create barriers to employment that violate Title VII.
Employers can avoid liability for disparate impact claims under Title VII by showing the policy or practice is “job related for the position in question and consistent with business necessity.” To establish that an exclusion based on criminal conduct that has a disparate impact is job related and consistent with business necessity, “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 EEOC provides two circumstances in which it believes employers can “consistently meet the ‘job related and consistent with business necessity’ defense.”
First, the employer can validate the exclusion based on criminal conduct “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).”
Second, the employer can use a “targeted screen.” There are two steps to the “targeted screen” process: (1) the employer creates a targeted screen “considering at least the nature of the crime, the time elapsed, and the nature of the job,” and (2) the employer provides an opportunity for an “individualized assessment” of the employee. An “individualized assessment” consists of notice to the employee that she has been screened out because of a criminal conviction, an opportunity for the employee to demonstrate the exclusion does not apply based on her particular circumstances, and consideration by the employer as to whether the information provided warrants an exception to the exclusion. The employee’s showing may include information indicating she was incorrectly identified in the criminal record, the record is inaccurate, facts surrounding the offense, the number of offenses for which she was convicted, older age at the time of conviction or release from incarceration, evidence that she performed the same type of work post-conviction without incident, the length and consistency of employment before and after the offense, her efforts at rehabilitation, any references, and whether she is bonded under a state or federal bonding program. While an individualized assessment is not always required it may help employers avoid liability by allowing them to consider more complete information on individual employees.
The Guidance notes that even if an employer successfully demonstrates its policy or practice is job related for the position in question and consistent with business necessity, a Title VII plaintiff could still prevail by demonstrating there is a less discriminatory “alternative employment practice” that serves the employer’s legitimate goals as effectively as the challenged practice but which the employer refused to adopt.
Additionally, the Guidance acknowledges that individuals with certain kinds of convictions may be barred by federal law from certain types of employment; compliance with such laws is a defense to discrimination.
The Guidance concludes by offering the following best practice tips for employers who consider criminal records when making employment decisions:
- Eliminate policies or practices that absolutely exclude people from employment based on any criminal record;
- Train managers, hiring officials, and decisionmakers on Title VII and its prohibition on employment discrimination;
- Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct;
- Limit inquiries about criminal records to those for which exclusion would be job related for the position in question and consistent with business necessity; and
- Keep information about employees’ criminal records confidential and only use it for the purpose for which it was intended.