Contrary to Public Opinion, You Can Still Conduct Criminal Background Checks – With Caution

Criminal-Background-CheckIn April of 2012, the U.S. Equal Employment Opportunity Commission (EEOC) issued an Enforcement Guidance addressing an employer’s ability to consider an applicant/employee’s arrest and/or conviction records in employment-related decisions.

It is important to note that such Guidance does not have the force and effect of law. It is, rather, the EEOC’s opinion of how it will construe certain statuses over which it has enforcement power. As a general rule, this means that employers ignore such Guidance at the peril of protracted and expensive litigation, either with the EEOC or with a Plaintiff armed with the EEOC’s Guidance.

This particular Guidance recommends that employers not inquire into arrests and/or convictions of applicants or employees on the ground that doing so has a disparate impact against African Americans and Hispanics.

According to the EEOC, this fact gives it reason to investigate any use of criminal history information that eliminates African-American and/or Hispanic applicants from consideration. If challenged, an employer will have an opportunity to provide evidence that the policy does not cause a disparate impact, such as local data demonstrating that African Americans and Hispanics are not convicted at disproportionately higher rates in the employer’s geographic area. It is not likely that this evidence will exist and evidence that the employer has a racially balanced workforce will not be sufficient to defeat the Charge.

If an employer cannot disprove the EEOC’s disparate impact presumption, a fight that will be time-consuming and expensive, then an employer must demonstrate that disqualifying applicants based on criminal history is related to the job and consistent with business necessity. This will require an employer to effectively link specific criminal conduct and its dangers with the risks inherent in particular position’s functions. The Guidance identifies three factors as relevant to this analysis: (1) the nature and gravity of the offense; (2) the time that has passed since the conviction or the applicant’s release from punishment; and (3) the nature of the job in question. Obviously, the more serious the offense, the more that it is related to the particular job in question and the closer in time it occurred, the more likely the act of using the individuals criminal background is found non-discriminatory.

The Guidance also recognizes a distinction between arrest and conviction records. An arrest does not establish the presence of criminal conduct. As such, it is very difficult to prove that an exclusion based on a mere arrest is job related and consistent with business necessity. And, while a conviction is sufficient basis to conclude that a person actually engaged in criminal conduct, the conviction alone might not be sufficient to deny the applicant, depending on the nature and recency of the conviction in light of the position for which he is applying. Accordingly, the EEOC discourages employers from asking about convictions on job applications. The EEOC would prefer that employers make a conditional hiring decision, then request criminal history only from the potential hire and limit that inquiry only to a pre-identified list of convictions for which exclusion would be job related and consistent with business necessity.

According to the Guidance, an employer may establish the business necessity requirement by developing a targeted screening program which considers the three factors and also provides for an individualized assessment of applicants with disqualifying criminal convictions. This individualized assessment should provide notice to the individual that he was eliminated because of a criminal conviction and allow him to demonstrate that he should not be excluded due to his particular circumstances. Relevant factors include the facts and circumstances surrounding the conviction, the number of offenses, length and consistency of the applicant’s employment history, evidence of rehabilitation, and employment or character references. An employer must then consider if this additional information justifies an exception to its policy.

Keep in mind that utilizing these practices will not immunize an employer from disparate impact claims. Even if an employer successfully proves that its policy is job related and consistent with business necessity, and employer may still be liable under Title VII if an applicant can point to a less discriminatory approach that would serve the same purpose as effectively as the challenged practice.

The Guidance recommends that employers utilize the following best practices:

  • Eliminate policies that exclude candidates based on mere arrests;
  • Train managers and officials about Title VII and its prohibitions on discrimination;
  • Develop narrowly-tailored written policies regarding how criminal history information is to be used in hiring decisions;
  • Identify essential job requirements and the actual circumstances under which the jobs are performed;
  • Determine the specific offenses that demonstrate unfitness for performing a job;
  • Determine the duration of exclusions for criminal convictions;
  • Conduct an individualized assessment of the applicant’s record and circumstances;
  • Record the justification for the policy, including consultations and research considered in crafting the policy;
  • Limit inquiries to convictions for which exclusion would be job related and consistent with business necessity; and
  • Keep information about applicants’ and employees’ criminal records confidential and only use it for the purpose for which it was intended.

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