On April 25, 2012, the U.S. Equal Employment Opportunity Commission (EEOC) updated its enforcement guidance on employer use of arrest and conviction records in reaching employment decisions. While Title VII does not prohibit employers from requiring applicants or current employees to provide information concerning arrests, incarcerations, or convictions, in some cases an employer's reliance on criminal histories has a disproportionate adverse impact on protected classes of individuals (most notably, based on race and national origin). It may also be used as an intentional or unwitting tool to discriminate against certain applicants or employees on the basis of their protected statuses. The guidance dispenses some practical advice on both fronts.
With respect to disparate treatment discrimination concerns (individual complaints requiring proof of intent), the guidance instructs a consistent approach to whatever policies are adopted by an employer to deal with these hiring or retention criteria. For example, if a Caucasian and an African American applicant for employment present the same or very similar criminal backgrounds, the employer must be careful not to hire one and reject the other solely on this basis. Whatever policy an employer adopts for screening criminal histories must be applied consistently and uniformly to all affected applicants and employees regardless of their race, national origin, or other protected status.
The adverse impact analysis projects a more complicated dilemma for employers resulting from the new guidance. If the employer's across-the-board approach (e.g., our policy is not to hire any candidates who have been convicted of criminal offenses other than minor traffic violations) has a disproportionate impact on African American or Hispanic applicants, the employer must demonstrate a "business necessity" for excluding otherwise qualified individuals based on their criminal histories. The employer must also prove that there is no less intrusive means of accomplishing the same legitimate employment objective (e.g., we do not want to hire employees who are likely to steal money from us). Applying the EEOC's guidance on this issue may cause all employers to re-evaluate their hiring policies relative to criminal backgrounds.
The EEOC assumes that zero tolerance criminal background policies will have a disparate impact based on race and national origin. The guidance is thus aimed at finding a middle ground that will protect legitimate employer interests without disproportionately eliminating otherwise qualified minority candidates. The EEOC suggests that this will be best accomplished with policies that:
- Distinguish among the nature and gravity of the offenses committed (e.g., an armed robbery conviction may be treated differently from a drug-related offense);
- Consider how long ago the offense occurred ( e.g., 2 years vs. 20 years ago); and
- Compare the job applied for with the crime committed (e.g., a sex offender may be better placed in a warehouse than on a school bus).
Finally, before rejecting any particular candidate based on his/her criminal background, the EEOC recommends an individualized assessment that may look at mitigating factors such as the candidate's age at the time of committing the offense; employment background since the offense; post-offense rehabilitation efforts or training; and the facts and circumstances surrounding the offense itself.
In sum, the EEOC's guidance makes clear that a one-size-fits-all criminal background policy will subject employers to "reasonable cause" determinations where protected status elimination occurs either on an individual or group level. This would be a very good time to revisit your policy and approach to screening out applicants and eliminating employees with criminal histories.
If you have questions in this regard or would like a policy review, please contact your Bose McKinney & Evans labor and employment law attorney.