5 Things the EEOC Says You Shouldn’t Do with Criminal Records - A Creative Services, Inc. Compliance Corner Article

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5 Things the EEOC Says You Shouldn’t Do with Criminal Records

05.11.12

On April 25, the U.S. Equal Employment Opportunity Commission (EEOC) approved new guidance on the use of arrest and conviction records in employment decisions. The EEOC has long held that an employer's use of an individual's criminal history may violate Title VII of the Civil Rights Act of 1964. However, if an employer's criminal records screening policy or practice disproportionately screens out a Title VII-protected group (e.g., members of a particular race or nationality), the employer may defend against a discrimination claim by showing that the policy or practice is job related and consistent with business necessity, and that a less discriminatory alternative screening method was unavailable.

Though the EEOC's new guidance does not change the agency's fundamental position on Title VII and criminal records, it does provide employers more clarification in analyzing whether applicants’ arrests and convictions should exclude them from certain positions.

When considering applicants' criminal histories, the EEOC recommends that employers do not:

1. Use an arrest record to exclude an applicant. Arrests are not proof of criminal conduct, according to the EEOC, and excluding a job candidate from employment based only on the fact that he or she was arrested is not job related and consistent with business necessity. However, in some circumstances, an arrest may trigger further examination. If the conduct underlying the arrest makes the individual unfit for the position in question, the EEOC states that the conduct may be grounds for exclusion. The conduct, not the arrest, is what is relevant for employment purposes. However, employers should still be mindful of state laws restricting arrest record inquiries.

2. Ask about convictions on job applications. As a best practice, and consistent with applicable laws, the EEOC recommends that employers not ask about convictions on job applications.

Some states already require employers to wait until later in the selection process to ask about convictions. In theory, an employer is more likely to objectively assess the relevance of an applicant's conviction when the employer is already aware of the applicant's qualifications and experience.

3. Exclude all individuals with criminal records. A policy or practice requiring an automatic, across-the-board exclusion from all employment opportunities because of any criminal conduct may violate Title VII, according to the EEOC. In order to show that a criminal record screening procedure meets the standard of being job related and consistent with business necessity, an employer needs to show that the policy effectively links specific criminal conduct and its dangers with the risks inherent in a particular position.

According to the EEOC, an employer can do this by:

Validating the criminal records screen for the position in question per the Uniform Guidelines on Employee Selection Procedures standards (if data about criminal conduct as related to subsequent work performance is available and such validation is possible); or
Developing a targeted screen considering at least the nature and gravity of the offense or conduct, the time that has passed since the offense, conduct, and/or completion of the sentence, and the nature of the job held or sought, and then provides an opportunity for an individualized assessment for people excluded by the screen to determine whether the policy as applied is job related and consistent with business necessity.
A targeted screen would need to be narrowly tailored to identify criminal conduct with a demonstrably close connection to the position in question, according to the EEOC. It should focus on the dangers of particular crimes and the risks in particular positions. Exclusions based on targeted screening takes into consideration fact-based evidence, legal requirements, and/or relevant and available studies, the Commission asserts.

4. Fail to make an individualized assessment. Title VII does not necessarily require individualized assessment in all circumstances, according to the EEOC. However, the use of individualized assessments can help employers avoid Title VII liability by allowing them to consider more complete information on individual applicants or employees, as part of a policy that is job related and consistent with business necessity.

Individualized assessment generally means that an employer informs the individual that he or she may be excluded because of past criminal conduct, provides an opportunity to the individual to demonstrate that the exclusion does not properly apply to him or her, and considers whether the individual’s additional information shows that the policy as applied is not job related and consistent with business necessity.

5. Use information differently based on an applicant’s protected class. An employer may be liable for violating Title VII when it treats an applicant differently because of his or her race, national origin, or another protected basis. This is known as disparate treatment. For example, an employer may violate Title VII if it rejects an African American applicant based on his or her criminal record but hires a similarly situated white applicant with a comparable criminal record.

Copyright 2012 J.J. Keller & Associates, Inc. Reprinted with permission. For more information, visit www.prospera.com

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