eLABORate: EEOC Issues Revised Enforcement Guidance on Criminal Histories in Employment Selection Decisions

April 26, 2012

On April 25, 2012, the United States Equal Employment Opportunity Commission ("EEOC") issued revised enforcement guidance on the extent to which employers may rely on an individual’s criminal history in making hiring or other employment selection decisions.

EEOC has long taken the position that making employment decisions solely based on an applicant’s criminal record may violate Title VII of the Civil Rights Act of 1964, as amended, ("Title VII") when such reliance disproportionately and unjustifiably excludes people of a particular race or national origin and is not job related and consistent with business necessity, i.e., "disparate impact" discrimination.

The stated rationale for EEOC’s position is that employers’ reliance on criminal records as a factor in hiring decisions disproportionately affects African-Americans and Hispanics, who statistically have higher rates of arrest and criminal conviction. EEOC also makes clear that use of criminal histories could support a claim of disparate treatment discrimination, including when decisions are made based on stereotypes about classes of individuals.

For an employer to avoid Title VII disparate impact liability for excluding an individual with a criminal record, EEOC’s guidance reiterates the standards from Green v. Missouri Pacific Railroad, namely that an employer must show that it considered three factors: (1) the nature and gravity of the offense, (2) the amount of time since the conviction, and (3) the relevance of the offense to the type of job being sought.

While the new guidelines do not forbid criminal background checks by employers, blanket employment exclusions are proscribed and "[a] policy or practice that excludes everyone with a criminal record from employment will not be job related and consistent with business necessity and therefore will violate Title VII, unless it is required by federal law." The guidelines also sharply differentiate between an employer’s reliance on a record of arrests as opposed to a record of convictions. EEOC’s guidance states that reliance on an arrest as a basis for exclusion (as opposed to actual conduct underlying the arrest) will not satisfy Title VII’s requirement that the policy be job related and consistent with business necessity.

In its public release of the new guidelines, EEOC seeks to emphasize that it is not establishing new rules, but is simply offering "clarification" to the existing rules. The guidance should be fully and carefully evaluated, however, and a few points bear highlighting. First, EEOC presumes that use of criminal records to exclude individuals from employment has a disparate impact on race and national origin, based on national statistics ("National data . . . supports a finding that criminal record exclusions have a disparate impact on race and national origin."). Thus, employers facing such charges will have the burden in investigations to show a lack of disparate impact. EEOC will, however, still evaluate applicant flow data and other statistical information provided by employers.

Second, although EEOC continues to rely on the Green factors to determine whether a criminal history exclusion policy is job related and consistent with business necessity, it suggests a tighter standard than its prior policy. EEOC discusses the 2007 Third Circuit decision in El v. Southeastern Pennsylvania Transportation Authority, which suggested employers must "accurately distinguish" between unacceptable and acceptable risks in candidates with criminal histories, and EEOC now says that employers’ exclusion policies must "effectively link specific criminal conduct, and its dangers, with the risks inherent in the duties of a particular position." To do so, EEOC requires employers to show that the exclusion policy has been validated per EEOC’s Uniform Guidelines on Employee Selection Procedures or that the exclusion policy is targeted based on the Green factors and the individual is then evaluated and even given an opportunity to explain the circumstances surrounding his criminal history. EEOC includes nine examples of factors, including whether the criminal record is inaccurate, for employers to evaluate. Although EEOC leaves some room for targeted exclusion policies based solely on the Green factors, the exception is narrow. Thus, employer policies that exclude individuals from particular jobs based on particular crimes for which they were convicted during a particular time period, relying on Green, need to reevaluate their position if dealing with EEOC.

Third, EEOC recommends that employers not ask about criminal histories on job applications. Unlike the ADA, which prohibits inquiries about medical conditions pre-hire, Title VII contains no similar prohibition. Nevertheless, many convict-advocacy groups have sought to exclude inquiries about convictions pre-hire (an effort sometimes referred to as "ban the box" in reference to a box checked on an application regarding the existence of a criminal history), and this "best practice" appears designed to address that concern.

Finally, although EEOC acknowledges generally that federal requirements barring applicants with criminal histories is a defense for employers subject to and complying with those requirements, it makes clear that reliance on state-based requirements that are inconsistent with Title VII will not be a defense to a Title VII claim, putting those employers subject to such state requirements in a quandary. The impact of this position, of course, will vary by state, as some states have much more stringent restrictions on consideration of criminal histories than EEOC’s guidance imposes.

EEOC’s "Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964" is available at http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm. EEOC also has issued a Question-and-Answer document to provide employers with additional compliance information. That document is available at http://www.eeoc.gov/laws/guidance/qa_arrest_conviction.cfm.