What’s up with the EEOC and criminal background checks? The EEOC enforces anti-discrimination laws. Administering background checks to all applicants can’t be discriminatory can it? If not, then why would employers even have to worry about the EEOC when conducting background checks?
Let’s answer that question and some others:
Are former convicts a protected class under antidiscrimination laws? No. Certain practices, while themselves neutral, may, by “hurting” a disproportionate number of people protected under federal anti-discrimination laws, have a discriminatory impact. Those practices too would then be violative of federal anti-discrimination laws. The EEOC, citing studies show that African-Americans and Hispanics have significantly more arrests and convictions, takes the position that blanket exclusions of all applicants with criminal histories therefore has a discriminatory impact on African-Americans and Hispanics.
Why is the EEOC now getting involved in this practice? Many employers are surprised to hear that the EEOC has issued position statements since at least 1987 on this very issue. Based on this position, it began investigating complaints relating to use of background checks when hiring, and filing lawsuits long before issuing its latest Enforcement Guidance last April.
Does this mean that employers can no longer conduct criminal background checks? No! Employers can, and, in order to avoid harmful situations and negligent hiring suits, should, still conduct background checks. The Enforcement Guidance attempts to provide employers with some additional guidelines as to how and when to use the information contained in criminal background checks in making their hiring decisions. Prior to issuing its Enforcement Guidance, the EEOC provided more basic guidelines (which the Enforcement Guidance has incorporated) by telling employers to consider the following factors with respect to applicants and their criminal backgrounds:
- The nature and gravity of the offense;
- Time elapsed since the conviction and/or completion of sentence;
- Nature of the job held or sought.
The EEOC, and federal court cases (the US Supreme Court has never decided this issue) also have held that a business necessity will justify exclusion of an applicant based on his or her criminal record. Simply put, if one’s criminal past is not relevant to the essential functions of a particular job or some other compelling business necessity, the employer should not exclude the applicant on that basis. For example, if Betty applies for a job as a bookkeeper and was convicted two years ago for embezzlement, that is relevant to the job. Rejecting her is justified even under the EEOC’s analysis and guidelines. An employer might reject a man with a history of sexually assaulting women for a job that would put him in proximity with a female employee late at night when no one else is around and be acting consistent with a business necessity. On the other hand, if Danny pleaded guilty to public drunkenness one time 7 years ago that may not be a justifiable basis for refusing him a job as an administrative assistant.
What then, does the EEOC’s Enforcement Guidance really change? Given that the EEOC’s position and practices have been essentially the same for over 25 years, perhaps not much at all. The Guidance over 46 pages long, mostly cites background, studies and reasoning for its position. The part of most practical interest to employers, the list of Employer Best Practices, is at the end of the Enforcement Guidance, and is as follows:
- Eliminate policies or practices that exclude people from employment based on any criminal record. Employers cannot have blanket exclusions of those with criminal pasts. (So this is a blanket exclusion of blanket exclusions?? Maybe.)
- Train managers, hiring officials and decision makers about Title VII and its prohibition on employment discrimination. Title VII of the Civil Rights Act of 1964 is the law that prohibits employment discrimination against certain classes of people identified therein (i.e. “protected classes”). The EEOC wants employers to sensitize its managers to these laws, and how otherwise neutral practices can have a discriminatory impact on the people who Title VII is designed to protect. Ideally, training managers about Title VII and related laws should not be new.
Developing a Policy:
- Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct (that does the following:)
- 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.
In short, the EEOC wants employers to implement policies that consider the relationship of the criminal offense(s) to the essential job requirements, especially if they are “old”, possible rehabilitation by the candidate, and whenever possible, to evaluate on a case by case basis. If an employer rejects an applicant based on criminal history, it should record the decision and the justification and, once it has created a policy and procedures, train those it expects to be implementing them. (NOTE: According to the EEOC, arrests alone are not themselves evidence of criminal conduct, though the underlying conduct leading to the arrest, if related to job functions or business necessity can be considered.)
- 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.
Employers should, whenever possible, only ask about items related to the actual job or a specific business necessity. If the report refers to something that is not related to the job, the employer should not ask about it.
- Keep information about applicants’ and employees’ criminal records confidential. Only use if for the purpose for which it is intended.
This one seems self-explanatory.
Wow, this is a long post! Let’s digest it and come back next week to sort out what it all means, OK?
To read or hear more on this subject: Click here for my guest post on background checks and the EEOC, and Pepsi Bottling Co. Click here and here to listen to my podcasts on this subject. For more in-depth treatment, e-mail me and I will send you my article from July 2011’s EEO Insight.
Are you in the staffing industry? Do you use staffing agencies to meet your staffing requirements? If so, click here to read my post about “temps” rights under the FMLA on The Staffing Stream , a blog by Staffing Industry Analysts.
Disclaimer: Contents of this post are for informational purposes only, are not legal advice and do not create an attorney-client relationship. Always consult with competent local employment counsel on any issues discussed here.
Click here to learn more about Janette Levey Frisch, author of The Emplawyerologist.
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