EEOC Updates Best Practices for Using Criminal Records in Hiring

18 May EEOC Updates Best Practices for Using Criminal Records in Hiring

By Andrew G. Simpson

Recognizing that technology has changed hiring procedures and also that more people are coming in contact with the criminal justice system, the federal government has updated its guidelines for employers who use arrest and conviction records in their hiring decisions and do not want to get on the wrong side of the law when doing so.

The Equal Employment Opportunity Commission (EEOC), which  enforces federal laws prohibiting employment discrimination including Title VII of the Civil Rights Act of 1964, focuses on employment discrimination based on race and national origin in its update. The EEOC voted 4-1 to approve the revised document.

While Title VII does not prohibit an employer from requiring applicants or employees to provide information about arrests, convictions or incarceration, it does make it unlawful to discriminate in employment based on race, color, national origin, religion, or sex.

“The new guidance clarifies and updates the EEOC’s longstanding policy concerning the use of arrest and conviction records in employment, which will assist job seekers, employees, employers, and many other agency stakeholders,” said EEOC Chair Jacqueline A. Berrien.

It is the first update to the rules on using arrest and conviction records in 20 years.

“In the last 20 years, technology has changed not only the way people apply for jobs, but also the way employers screen people for jobs. The review of criminal records is often part of that screening process,” Tanisha Wilburn, assistant legal counsel for the EEOC, said.

There is another thing that has changed in the last 20 years: the proportion of Americans who have had contact with the criminal justice system. In 1991, 1.8 percent of the adult population had served time in prison. By 2007, 3.2 percent of all adults were under some form of correctional control involving probation, parole, prison or jail.

If incarceration rates do not decrease, the Department of Justice has projected that approximately 6.6 percent of all people born in the U.S. in 2001 will serve time in state or federal prison during their lifetimes.

Also, EEOC noted that arrest and incarceration rates continue to be disproportionately high for African American and Hispanic men. African Americans and Hispanics are arrested at a rate that is two to three times their proportion of the general population. Assuming that current incarceration rates remain unchanged, approximately 1 in 17 white men is expected to serve time in prison during his lifetime; 1 in 6 Hispanic men is expected to do so, and 1 in 3 African American men is expected to be incarcerated in his lifetime.

In some industries, federal laws and regulations restrict the hiring of applicants with criminal records. There are requirements for federal law enforcement officers, airport security screeners, childcare workers in federal agencies, bank employees, and port workers, among other positions.

Title VII does not preempt these federally imposed restrictions. However, EEOC notes, “if an employer decides to impose an exclusion that goes beyond the scope of a federally imposed restriction, the discretionary aspect of the policy would be subject to Title VII analysis.”

Most employers conduct criminal background checks, citing legal requirements along with concerns about negligent hiring liability, theft and workplace violence as reasons for doing so.

A Society for Human Resources Management survey in 2010 found that 73 percent of employers conduct criminal background checks on all of their job candidates, while 19 percent do criminal background checks on selected job candidates. Only seven percent do not conduct criminal background checks on any of their candidates, according to that survey.

Arrest v. Conviction

Among other topics, the updated EEOC guidance discusses:

• How an employer’s use of an individual’s criminal history in making employment decisions could violate the prohibition against employment discrimination under Title VII;
• Federal court decisions analyzing Title VII as applied to criminal record exclusions;
• The differences between the treatment of arrest records and conviction records;
• The applicability of disparate treatment and disparate impact analysis under Title VII;
• Compliance with other federal laws and/or regulations that restrict and/or prohibit the employment of individuals with certain criminal records; and
• Best practices for employers.

In one section, the EEOC addresses the differences between arrest and conviction records.

“The fact of an arrest does not establish that criminal conduct has occurred, and an exclusion based on an arrest, in itself, is not job related and consistent with business necessity,” the EEOC says. “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 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,” according to the EEOC.

Employers are warned to avoid liability for disparate treatment or impact that could trigger an investigation. Employers may be in violation of laws if they treat criminal history information differently for different applicants or employees, based on their race or national origin.

Employers performing background checks may search governmental sources themselves or conduct their own Internet searches, but many also rely on third-party background screening businesses. These businesses are considered consumer reporting agencies subject to the federal Fair Credit Reporting Act.

In its hearings on the subject, the EEOC heard testimony that criminal reports are often inaccurate. A “significant number of state and federal criminal record databases include incomplete criminal records,” the EEOC found. Also private consumer reporting agencies’ databases may be “missing certain types of disposition information, such as updated convictions, sealing or expungement orders, or orders for entry into a diversion program.”

Best Practices

The following are examples from the EEOC of best practices for employers who are considering criminal record information when making employment decisions.

General

• Eliminate policies or practices that exclude people from employment based on any criminal record.
• Train managers, hiring officials, and decision makers about Title VII and its prohibition on employment discrimination.

Developing a Policy

• Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct.
• Identify essential job requirements and the actual circumstances under which the jobs are performed.
• Determine the specific offenses that may demonstrate unfitness for performing such jobs.
• Identify the criminal offenses based on all available evidence.
• Determine the duration of exclusions for criminal conduct based on all available evidence.
• Include an individualized assessment.
• Record the justification for the policy and procedures.
• Note and keep a record of consultations and research considered in crafting the policy and procedures.
• Train managers, hiring officials, and decision makers on how to implement the policy and procedures consistent with Title VII.

Questions about Criminal Records

• When asking questions about criminal records, limit inquiries to records for which exclusion would be job related for the position in question and consistent with business necessity.

Confidentiality

• Keep information about applicants’ and employees’ criminal records confidential. Only use it for the purpose for which it was intended.

The EEOC guidance on “Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964″ may be found here.