New EEOC Guidance On Criminal Records

Kegler Brown E-mployment Alert

Do you screen applicants on the basis of criminal convictions? If so, the EEOC has just issued a Guidance that may affect your screening process. [EEOC Enforcement Guidance, No. 915-002; 4/25/2012)].

As most employers know, the EEOC has long adhered to the position that arrest records may not be requested or considered, because an arrest does not establish that any criminal conduct occurred.

With respect to records of criminal convictions, the EEOC’s position is that consideration of convictions could be illegal discrimination in two ways. The first is traditional unequal treatment, where candidates of different races, national origin, etc. are treated differently despite similar conviction histories.

The second form of illegal practice is a “disparate impact.” A disparate impact arises when an employer uses a facially neutral policy (“we don’t hire anyone with a criminal record”) with the result that it disproportionately affects a class of individuals protected by Title VII (race, color, national origin, etc.). The premise of the EEOC’s position is their statistical finding that while 1 in 17 white men will serve time in prison, this number is 1 in 6 for Hispanic men and 1 in 3 for African-American men. Thus, in the EEOC’s view, a policy that disqualifies applicants based on criminal records will disproportionately exclude a higher percentage of Hispanic and African-American applicants. In such a case, the hiring criterion will be deemed illegal unless the employer can show that it is “job-related and consistent with business necessity.

The EEOC does not prohibit criminal conviction consideration in hiring. However, the Guidance sets forth a number of recommended “best practices.” The implication, of course, is that if employers do not embrace and implement the “best practices” they will have enforcement problems with the EEOC. The best practices include developing a written policy for screening applicants or employees on the basis of criminal records, which:

  • Identifies the essential job requirements and the circumstances under which various jobs are performed;
  • Develops a “targeted screen,” which determines what criminal offenses could demonstrate disqualification from each position, “based on all available evidence,” and taking into account (i) the nature of the crime, (ii) the time elapsed, and (iii) the nature of the job;
  • If an applicant reveals a disqualifying criminal record, affords the applicant the opportunity to explain or show that the criminal record is inaccurate, or other individualized facts that would indicate that the applicant does not, under the circumstances, pose a disqualifying risk.

Of course, this whole process must be documented for EEOC enforcement purposes. The EEOC Enforcement Guidance is effective today, April 26, 2012.