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Employment: EEOC Puts the Cuffs on Employers When It Comes to Criminal Backgrounds
Earlier this year, the Equal Employment Opportunity Commission (EEOC) released Enforcement Guidance regarding the “Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964.”The EEOC’s Enforcement Guidance specifically addresses two types of discrimination: disparate impact and disparate treatment.
Disparate treatment arises, for example, when there are two individuals applying for the same job, who have different ethnic backgrounds, one of which is a protected class (e.g. African American) and the other white, but both have similar criminal backgrounds. If the employer hires the similarly situated White individual and denies the African American individual a position based upon his criminal background, the EEOC will find probable cause of discrimination.
The EEOC provided the following example:
Disparate Treatment Based on Race.
John, who is White, and Robert, who is African American, are both recent graduates of State University. They have similar educational backgrounds, skills, and work experience. They each pled guilty to charges of possessing and distributing marijuana as high school students, and neither of them had any subsequent contact with the criminal justice system.
After college, they both apply for employment with Office Jobs, Inc., which, after short intake interviews, obtains their consent to conduct a background check. Based on the outcome of the background check, which reveals their drug convictions, an Office Jobs, Inc., representative decides not to refer Robert for a follow-up interview. The representative remarked to a co-worker that Office Jobs, Inc., cannot afford to refer “these drug dealer types” to client companies. However, the same representative refers John for an interview, asserting that John’s youth at the time of the conviction and his subsequent lack of contact with the criminal justice system make the conviction unimportant. Office Jobs, Inc., has treated John and Robert differently based on race, in violation of Title VII.
The majority of the EEOC’s Enforcement Guidance covers disparate impact, which arises when an employer has a facially neutral policy that, when applied, disproportionately screens out members of a protected class.
The EEOC provided many examples, including the following:
Exclusion is Not Job Related and Consistent with Business Necessity.
The National Equipment Rental Company uses the Internet to accept job applications for all positions. All applicants must answer certain questions before they are permitted to submit their online application, including “have you ever been convicted of a crime?” If the applicant answers “yes,” the online application process automatically terminates, and the applicant sees a screen that simply says “Thank you for your interest. We cannot continue to process your application at this time.”
The Company does not have a record of the reasons why it adopted this exclusion, and it does not have information to show that convictions for all offenses render all applicants unacceptable risks in all of its jobs, which range from warehouse work, to delivery, to management positions. If a Title VII charge were filed based on these facts, and there was a disparate impact on a Title VII-protected basis, the EEOC would find reasonable cause to believe that the blanket exclusion was not job related and consistent with business necessity because the risks associated with all convictions are not pertinent to all of the Company’s jobs.
The main point of the EEOC’s Enforcement Guidance is that an employer cannot blindly rely on just a criminal conviction to deny employment. This does not mean that an employer can never rely upon a conviction to deny employment. A bank, for instance, does not have to hire an individual who was convicted of embezzling to keep its books. However, that same bank may discriminate by not hiring an individual with a jaywalking conviction, based on a policy that the bank never hires individuals with any past criminal convictions.
The EEOC Enforcement Guidance, as well as the case law in this area, dictate to employers that record-based exclusions that have a disparate impact on people of color are only permissible if they are justified by “business necessity.” To determine “business necessity,” an employer must consider:
i. The nature and gravity of the offense;
ii. The time elapsed since the conviction or completion of sentence; and,
iii. The nature of the job sought.
Generally, this requires making individual inquiries into the position and the applicant. Thus, employers should (1) eliminate policies or practices that automatically exclude applicants based on any criminal record; (2) develop policies and procedures whereby it identifies the essential requirements of each position and the specific offenses that generally will demonstrate unfitness for performing it; and (3) perform individualized assessments on applicants to determine whether the circumstances surrounding a conviction warrant exceptions to an exclusion.
When asking questions about criminal records, the EEOC directs employers to limit inquiries to criminal records for which exclusion would be job-related for the position in question and consistent with business necessity. Although the EEOC Enforcement Guidance essentially restates the case law in this area, it demonstrates that the EEOC has a renewed “conviction” for enforcing this area of the law. Thus, employers would be wise to review their hiring policies to make certain that said policies are in compliance with federal law.
Please feel free to contact our experienced employment attorneys, Ryan Neumeyer or Lynn Schonberg, with any questions or concerns regarding hiring policies.