On April 25, 2012, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued new Enforcement Guidance on using arrest and conviction records when making employment decisions. The EEOC is aggressively pursuing this issue, as reflected by EEOC Commissioner Ishimaru’s remark at a recent public meeting that the EEOC is currently investigating hundreds of cases where employers unlawfully used criminal history in employment decisions.
What an Employer Can Ask?
The Guidance recommends that employers not ask about convictions on applications. When such questions are asked during other parts of the pre-employment process, they should be job-related.
The Guidance states in no uncertain terms that use of arrest records is not job related. However, when an applicant or current employee is arrested, the underlying conduct that led to the arrest can be considered if it renders the individual unfit for a position and only if the conduct is verifiable and not based solely on the fact of an arrest.
What Factors Should Employers Consider?
The EEOC has long declared that decisions based on a criminal conviction must consider these factors: (1) the nature and gravity of the offense(s), (2) the time that has passed since the conviction and/or completion of the sentence, and (3) the nature of the job held or sought. The new Enforcement Guidance, adds substance to these declarations.
Considering the nature and gravity of the offense(s) requires evaluating the harm caused, the legal elements of the crime, and the classification (i.e, misdemeanor or felony). As to the amount of time that has passed, employers should evaluate each case individually and consider studies of the risk of recidivism. As to the nature of the job, the EEOC says to look beyond the mere job title to analyze the duties, essential functions, and work environment.
Is an Individual Assessment Required?
While stopping short of saying that an individualized assessment is needed, the EEOC makes clear that “the use of a screen that does not include individualized assessment is more likely to violate Title VII.” An individualized assessment generally means that an employer (a) informs the individual that he may be excluded because of past criminal conduct, (b) provides an opportunity to the individual to demonstrate that the exclusion does not properly apply to him, and (c) considers whether the individual’s additional information shows that the policy as applied is not job related and consistent with business necessity.
Employer Best Practices
The Guidance suggests several “Best Practices” for employers who are considering criminal record information when making employment decisions.
- 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;
- Develop a narrowly tailored written policy and procedures for screening for criminal records;
- 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;
- 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;
- 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; and
- Keep information about the criminal records of applicants and employees confidential.
The use of criminal records in hiring or employment decision making is not illegal, but the EEOC has made it very clear that employers using them must demonstrate that such use is “job related and consistent with business necessity.” The practices outlined above would be a good start in meeting that standard.