New EEOC Criminal History Guidelines
Arthur V. Lambert,
Board Certified, Labor and Employment Law, Texas Board of Legal Specializations, State Bar of Texas
Joshua M. Sandler
In an effort to deter or decrease employers' reliance on the use of criminal history information, the EEOC recently issued guidance on this topic. This guidance, the Enforcement Guidance on Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 (the "Guidance") is available at http://www.eeoc.gov/eeoc/newsroom/ release/4-25-12.cfm. In short, while the EEOC makes clear what it does not like—employers’ over-reliance on employees or potential employees’ past criminal history information—it provides little definitive guidance to employers in a number of areas. What is clear, however, is that inquiries into employee criminal history carry with them some risk, as is explained below.
What Not To Ask:
The EEOC breaks the analysis down to two different inquiries: convictions and arrests.
1) Convictions. The EEOC recommends that employers not ask about convictions on applications unless they are demonstrably job-related. Some employers have employment applications that ask every applicant about all convictions. This can create a problem for employers in trying to justify whether a conviction was the basis for not offering someone a job. Also, a significant gray area exists in determining whether certain convictions are job-related. An employer assumes a certain risk whenever it makes this determination.
2) Arrest Records. The Guidance is clear that the use of arrest records alone is never an appropriate reason to reject a prospective employee because an arrest is not proof of criminal conduct. An arrest, however, may in some circumstances trigger an inquiry into whether the conduct underlying the arrest justifies an adverse employment action. The EEOC holds that Title VII calls for a fact-based analysis to determine if an exclusionary policy or practice is job-related and consistent with business necessity. Existing employees may be placed on unpaid administrative leave while an employer investigates the underlying facts. Again, the employer bears the burden of demonstrating that the use of the criminal record is job-related or if it asks for the information on its applications, that it did not use the information when making the decision even though it was aware of the arrest record.
Factors To Consider When Evaluating Criminal History Information
The good news is that the Guidance does not specifically limit how far back in time an employer may consider criminal history information. The bad news is that this is one more decision that an employer has to make and ultimately justify.
Based on the Guidance, when evaluating criminal history information, employers should make an individualized assessment after considering the following factors:
A) the nature and gravity of the offense or offenses (for example, evaluating the harm caused by the offense, the legal elements of the crime, and its classification as a misdemeanor or felony;
B) the passage of time since the conviction and/or completion of the sentence (according to the EEOC, employers should look at particular facts and circumstances and even evaluate studies of recidivism); and
C) the nature of the job held or sought (the EEOC explains that considering the nature of the job includes consideration of the specific duties, essential functions, and environment that may impact the job).
These factors are not that easy to follow. Records are often incomplete, difficult to read, and vary from state to state. Plus, the EEOC recommends evaluating studies of recidivism—as if such studies are easy to find and all hiring authorities are social scientists who can interpret the studies.
One of the most emphasized areas in the Guidance is the “individualized assessment.” According to the EEOC, an individualized assessment can help employers avoid Title VII liability. In other words, when in doubt, ask the applicant/employee.
When making an individualized assessment, the EEOC recommends that an employer review several individual factors, including:
A) the facts or circumstances surrounding the offense or conduct;
B) the number of offenses for which the individual was convicted;
C) the individual’s age at the time of conviction or release from prison;
D) evidence that post-conviction, the individual performed the same type of work with the same or different employer, with no known incidents of criminal conduct;
E) the length and consistency of employment history before and after the offense or conduct;
F) rehabilitation efforts, e.g., education/training;
G) employment or character references and any other information regarding fitness for the particular position; and
H) whether the individual is bonded under a federal, state, or local bonding program.
Simple, right? Yet, for some industries and employers, this level of inquiry will be extremely burdensome.
What's an Employer to do?
The following are examples of best practices for employers who are considering criminal record information when making employment decisions.
i. Eliminate policies or practices that exclude people from employment based on any criminal record.
ii. Train managers, hiring officials, and decision-makers about Title VII and its prohibition on employment discrimination.
B) Developing a Policy
i. Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct.
ii. Identify essential job requirements and the actual circumstances under which the jobs are performed.
iii. Determine the specific offenses that may demonstrate unfitness for performing such jobs.
iv. Identify the criminal offenses based on all available evidence.
v. Determine the duration of exclusions for criminal conduct based on all available evidence.
vi. Include an individualized assessment.
vii. Record the justification for the policy and procedures.
viii. Note and keep a record of consultations and research considered in crafting the policy and procedures.
ix. Train managers, hiring officials, and decision-makers on how to implement the policy and procedures consistent with Title VII.
C) 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.
Keep information about applicants’ and employees’ criminal records confidential. Only use the information for the purpose for which it was intended.
For more information about these issues, contact:
Arthur V. Lambert
This Employment Alert is a summary of recent developments in the law and is provided for informational purposes only. It is not intended to constitute legal advice or to create an attorney-client relationship. Readers should obtain legal advice specific to their situation in connection with topics discussed.
Copyright © 2012 Kane Russell Coleman & Logan PC. All rights reserved. Unless otherwise indicated, the authors are not certified by the Texas Board of Legal Specialization.