On April 25, 2012, the U.S. Equal Employment Opportunity Commission (EEOC) issued a new Enforcement Guidance
, addressing an employer’s ability to use arrest and conviction records in making employment decisions. In addition, the EEOC also published Questions and Answers
to help employers better understand its new guidance. The new enforcement guidance takes into account recent court decisions and consolidates into one document the EEOC’s position on the permissible, non-discriminatory use of conviction and arrest records. While the guidance does not create an amendment to federal anti-discrimination laws, it is a roadmap for what to expect if a charge of discrimination is raised related to your use of arrest or conviction records. Employers using arrest or conviction records should consider this guidance when reviewing current or developing new practices or policies related to the use of criminal histories.
The EEOC enforces Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex or national origin. Over the last two decades, the EEOC has taken many steps to prohibit employers from using conviction and arrest records in a discriminatory way. The new guidance focuses on six main topics, including:
how an employer’s use of an individual’s criminal history could violate the prohibition against employment discrimination under Title VII;
federal court decisions analyzing the use of criminal records in employment actions;
the differences between the treatment of arrest records and conviction records;
disparate treatment and disparate impact claims that could result from an employer’s use of arrest and conviction records;
compliance with other federal laws and/or regulations that restrict the employment of individuals with certain criminal records; and
best practices for employers in using arrest and criminal records.
One important aspect of the guidance is the distinction between the use of arrest records and the use of conviction records. Employers routinely ask applicants and current employees to disclose their arrest and criminal conviction history. In doing so, employers often treat the words “arrest” and “criminal conviction” synonymously. However, the EEOC draws a broad distinction between these two categories of information.
The EEOC places more significant limitations on an employer’s use of arrest records. According to the EEOC, “arrest records standing alone may not be used to deny an employment opportunity.” However, an employer may make an employment decision based upon the conduct underlying the arrest, without violating federal anti-discrimination laws, if the conduct makes the individual unfit for the position in question.
For conviction records, the EEOC requires employers to have a “business necessity” for taking an employment action against an individual based upon the individual’s criminal conviction. Whether such a business necessity exists depends upon:
the nature and gravity of the offense;
the amount of time since the conviction/end of sentence; and
the nature of the job sought or held by the individual in question.
Employers should be aware that, according to the EEOC, state laws that address and place different restrictions on the use of conviction and arrest records than those outlined in the new EEOC guidance cannot be used by employers to avoid potential liability for discrimination under Title VII. This is one of the more controversial provisions of the new guidance and is likely to result in future litigation.
Given this new guidance, employers should carefully consider how to use arrest and conviction records to minimize risk while at the same time ensuring that the most qualified individuals are being hired. According to the EEOC, employers should not only consider the criteria listed above when using criminal records in employment decisions, but, in most circumstances, employers should also conduct an “individualized assessment” of the relationship between the particular criminal conduct identified and the ability of the individual to perform the position in question. Part of this individualized assessment is to inform the individual that he or she may be excluded or terminated due to the criminal conduct and to provide the individual an opportunity to provide additional information that would allow the employer to reconsider the decision. The new guidance also provides a list of “employer best practices” that employers should consider, including the development of a written policy. Employers should consult with their counsel when developing such policies or deciding whether to engage in an “individualized assessment” of each criminal record.