Are you making the right employment considerations under Title VII of the Civil Rights Act of 1964?
On April 25, 2012, the EEOC issued enforcement guidance on the consideration of arrest and conviction records. The bottom line is that an employer’s use of an individual’s criminal history in making employment decisions may, in some instances, violate the prohibition against employment discrimination under Title VII of the Civil Rights Act of 1964, as amended.
The guidance builds on longstanding court decisions and existing guidance documents that the EEOC issued over twenty years ago. The guidance focuses on employment discrimination based on race and national origin.
The fact of an arrest does not establish that criminal conduct has occurred, and an exclusion from consideration of a potential employee based on an arrest is not, in itself, “job-related and consistent with business necessity.” This is the standard the EEOC applies to exclusionary processes and procedures. However, an employer may make an employment decision based on the conduct underlying an arrest if the conduct makes the individual unfit for the position in question.
In contrast, a conviction record will usually serve as sufficient evidence that a person engaged in a particular conduct. In certain circumstances, however, there may be reasons for an employer not to rely on the conviction record alone when making an employment decision.
The EEOC guidance discusses disparate treatment and disparate impact analysis under Title VII. A disparate treatment violation may occur when an employer treats criminal history information differently for different applicants or employees based on their race or national origin. Contrarily, an employer’s neutral policy (e.g. excluding applicants from employment based on certain criminal conduct) may disproportionately impact some individuals. These would be individuals protected under Title VII and may violate the law if not job-related and consistent with business necessity. This is what is known as disparate impact liability.
According to the EEOC, national data supports a finding that criminal record exclusions have a disparate impact based on race and national origin. The national data provides a basis for the EEOC to investigate Title VII disparate impact charges challenging criminal record exclusions. However, there are two circumstances in which the EEOC believes employers will consistently meet the “job-related and consistent with business necessity” defense.
The first circumstance would involve an employer validating the criminal conduct exclusion for the position in question 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).
The second circumstance involves an employer who develops a targeted screen considering at least the nature of the crime, the time elapsed, and the nature of the job (the three factors identified by the court in Green v. Missouri Pacific Railroad). The employer’s policy then provides an opportunity for an individualized assessment for those people identified by the screen to determine if the policy is applied as job-related and consistent with business necessity. According to the EEOC, although Title VII does not require individualized assessment in all circumstances, the use of a screen that does not include individualized assessment is more likely to violate Title VII.
This guidance is in large part based on the growing practice of employers nationally to perform background checks on all potential hires. Employers are often excluding employees for any type of arrest record, especially given the large number of applicants. Employers are advised to exclude cautiously because the guidance is the indication that the EEOC will step up its enforcement, and that members of the public going to plaintiff’s attorneys may find that this is a basis for a successful EEOC claim of disparate treatment liability. For a larger employer, there is concern of the disparate impact liability where there is a pattern or practice involving multiple applicants who may bring a consolidated class action. Even without a consolidated class action, the EEOC will sometimes enforce its rules and look for discrimination on a multiple applicant basis, where information is available to them.
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