Date: 09/19/2018

Topic: Employment Background Checks

The Equal Employment Opportunity Commission (the “Commission”) approved, by a 4-1 vote, a revised Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act of 1964 (the “Guidance”). This law has already gone into effect.

The revised guidance reflects the EEOC’s long-held position that employers’ reliance on arrest and conviction records may have a disparate impact on individuals because of their race or national origin. Before disqualifying an individual with a criminal record from employment, the Commission emphasizes, employers should engage in an individualized assessment involving a dialogue with that individual. While the Guidance states that employers would not violate Title VII if they disqualify an applicant based on separate federal restrictions on the employment of persons with criminal records, an employer may not defend a decision to disqualify an individual solely on state restrictions on the hiring of persons with criminal records.

The EEOC has stated that there are two ways in which an employer’s use of criminal history information may violate Title VII. First, Title VII prohibits employers from treating job applicants with the same criminal records differently because of their race, color, religion, sex, or national origin (“disparate treatment discrimination”).

Second, even where employers apply criminal record exclusions uniformly, the exclusions may still operate to disproportionately and unjustifiably exclude people of a particular race or national origin (“disparate impact discrimination”). If the employer does not show that such an exclusion is “job related and consistent with business necessity” for the position in question, the exclusion is unlawful under Title VII.

Companies should seek or check with their counsel to review their employment background screening policy. The Equal Employment Opportunity Commission (EEOC) has provided substantial information on their website outlining their stance on the use of Arrest and Conviction Records.

Some of the main points are “disparate treatment” a violation may occur when an employer treats criminal history information differently for different applicants or employees, based on their race or national origin.

Also, “job related and consistent with business necessity”.

Employers will consistently meet this standard, according to the EEOC, if:

The employer validates the criminal conduct exclusion for the job using the Uniform Guidelines on Employee Selection Procedures or

Two, the employer develops a targeted screen considering at least the nature of the crime, the time elapsed, and the nature of the job. This would allow an individualized assessment for those people identified by the screen, rather than a blanket policy, for example, not to hire.

Some Direct Web Links to the EEOC

www.eeoc.gov/eeoc/newsroom/release/4-25-12.cfm

www.eeoc.gov/laws/guidance/arrest_conviction.cfm

www.eeoc.gov/laws/guidance/qa_arrest_conviction.cfm

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