By Katie Graham
There is no doubt that technology has made criminal history information much more accessible to employers. However, the notion that an employer's use of that information could violate Title VII unquestionably raises eyebrows. On April 25, 2012, the EEOC issued its Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964. The report supersedes prior reports from the EEOC regarding Title VII analysis for the use of criminal history information in employment decisions.
The EEOC's self-proclaimed purpose of the report is to help employers who use criminal records in their selection and retention process; to provide guidance to individuals who believe they have suffered adverse employment action as a result of their criminal record; and to provide guidance to EEOC staff when investigating discrimination charges involving the use of criminal records in employment decisions. While the Enforcement Guidance is predicated on federal court precedent, it does not have the force or effect of law. Whether a court or a jury would consider the guidelines a correct interpretation of the law remains undetermined.
The problem, and a partial basis for the new Enforcement Guidance, rests on statistics set out in the report that African Americans and Hispanics are arrested at a rate that is 2 to 3 times their proportion of the general population. In this report, the EEOC seemingly suggests that our criminal justice system is itself the culprit but nonetheless puts a heavy burden on employers.
In its report, the EEOC states an employer should be mindful that treating job applicants with the same criminal records differently because of their race, color, religion, sex, or national origin is an unlawful employment practice under Title VII. Additionally, the EEOC states that an employer who applies criminal record exclusions uniformly may nonetheless be acting unlawful under Title VII if the exclusion operates disproportionately and unjustifiably excludes people of a particular race or national origin. Under Eighth Circuit precedent and the report, policies that are fair in form but discriminatory in operation are unlawful unless job related and consistent with business necessity. For example, an online application that asks whether an employee has been convicted of a crime and automatically terminates upon clicking "yes"—"Thank you for your interest" may result in disparate impact when all convictions are not pertinent to all of the company's jobs.
So, what's the takeaway? First, employers should be mindful that an arrest does not establish that criminal conduct has occurred, but the employer may act based on evidence of conduct that disqualifies an employee for a certain position. Second, employers should eliminate policies which exclude individuals for any criminal record. Instead, employers should develop a policy which:
1. Identifies essential job requirements and circumstances under which the jobs are performed;
2. Determine the specific offenses that may demonstrate unfitness for performing the job;
3. Perform an individualized assessment which includes giving the individual the opportunity to provide further information as to why he or she should not be excluded, and which considers, among other factors, the time elapsed since the criminal conduct; and
4. When asking questions about criminal records, limit inquiries to offenses for which exclusion would be job related for the position in question and consistent with business necessity.
Due to the statistics set out above, the employer already starts out on the wrong foot and is left having to prove screening out an employee is job related for the position in question and consistent with business necessity. Requiring employers to hire employees that they would not otherwise hire in order to avoid violating Title VII is likely to result in increased negligent hiring claims. While arguably the statistics set out above highlight disparities in our criminal justice system, for now, the employer will bear the brunt for the remedy.
[...] May 1, 2012, we posted in this blog that the EEOC issued enforcement guidelines to scrutinize employers' use of criminal background [...]Posted By Does the Crime Fit the Job? | Nyemaster on Labor, on 06/28/2013