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Please note that this post was written by Angela Bosworth

It’s here!  The much anticipated EEOC guidance on the use of criminal records in employment was issued today, setting off a flurry of interpretations, complete with webinar invitations and blog posts. Not to be outdone, here’s our take on the matter.

By way of introduction, the road to new guidance was paved with protest, controversy and political horse-trading.  The EEOC has long maintained that the use of credit and criminal history in hiring can lead to “disparate impact” discrimination.  Disparate impact claims rely on statistical information to prove that use of criminal history and credit information has an unintended discriminatory effect on minorities. Studies that show a higher rate of arrests for blacks and Hispanics are often cited in disparate impact cases based on criminal history. While an increasing number of employers are seeking background checks out of security concerns, at the same time, more and more people are released every year from US prisons and jails. The growing ex-offender population, coupled with the economic climate and high unemployment, creates the perfect storm for disparate impact claims.

New criminal history guidance supports the Commission’s commitment to put an end to systemic discrimination and the push to help ex-cons get back to work.  In the past year, the EEOC has filed a record number of class action lawsuits alleging that employer’s use of credit and criminal history amounts to discrimination against blacks and Hispanics.  Pepsi recently paid a very well publicized 3.13 million dollars to settle a class action suit brought by the EEOC.

The push for new guidance is rumored to have been initiated by Obama-appointee and Chair Jackie Barrien, and was pushed to a vote this month due to the unexpected announcement from Democratic Commissioner Stuart J. Ishimaru that he would not finish his term. When he leaves at the end of April, Democrats lose their majority on the panel, and the chance of issuing this kind of guidance is slim. And because of the backlash the Obama administration has already encountered for recess appointments, the seat will likely remain vacant for the remainder of the year.

So without public comment or review, employers have been handed a new guidance to address using criminal history.  So what exactly is guidance, anyhow, and is it really just guidance?

Yes and no.  Technically speaking, the EEOC guidance is not binding on courts and carries no “official” legal weight. In practice, however, courts rely heavily on agency policy statements and the EEOC guidance in particular.  Employers understand and treat it like de facto legislation—Failure to heed the guidance may land you on the losing end of a class action suit in Federal Court.

The old guidance was issued in 1987 and recommended that before using criminal history information, employers had to take into consideration the following to demonstrate business necessity:

• the nature and gravity of the offense or offenses;

• the time that has passed since the conviction and/or completion of the sentence; and

• the nature of the job held or sought.

1987 EEOC Policy Statement on the Issue of Conviction Records under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. http://www.eeoc.gov/policy/docs/convict1.html

The EEOC also issued a 1990 policy statement on employers’ use of arrest records. Under that policy statement, employers have to consider the following before using arrest records to make an employment decision:

(i) the likelihood that the individual engaged in the conduct arrested for; and

(ii) job relatedness.

1990 EEOC Policy Statement on the Consideration of Arrest Records in Employment Decisions under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq.

http://www.eeoc.gov/policy/docs/arrest_records.html

Blanket exclusions of individuals with criminal records have always been suspect, and the use of arrest records has historically been strongly discouraged.

The new guidance supersedes the old policy statements, but incorporates the guidelines. It is heavy on background information, case studies and examples. It is sprinkled with “best practices” with a healthy dose of footnotes. The major game changer is a new requirement for an employer’s defense: Individualized Assessment.

In summary:

  • Job relatedness and business necessity remain the legal standard for an employer’s defense. Two times when this standard is met are defined:
    • “The employer validates the criminal conduct exclusion for the position in question in light of the Uniform Guidelines on Employee Selection Procedures (if there is data or analysis about criminal conduct as related to subsequent work performance or behaviors); OR”
    • “The employer develops a targeted screen considering at least the nature of the crime, the time elapsed, the nature of the job (the Greene factors). The employer’s policy then provides an opportunity for an individualized assessment for those people identified by the screen, to determine if the policy as applied is job related and consistent with business necessity.”
    • “Although Title VII does not require individualized assessment in all circumstances, the use of a screen that does not include individualized assessment is more likely to violate Title VII.”
    • Compliance with Federal law/mandate that conflicts with Title VII is a defense.
    • State and local laws are pre-empted by Title VII if they “purport to require or permit the doing of any act which would be an unlawful employment practice” under Title VII

Other notables:

  • It’s looong. 52 pages long, to be exact. 26 are guidance, the remainder is endnotes.
  • The difference between arrest and conviction records is discussed at length.
  • No more enforcement language. It is geared solely to employers.
  • No prohibition on open/pending cases. While arrest records are inherently suspect in terms of disparate impact discrimination, on an individual basis consideration of an open/pending arrest is still allowed.
  • Individualized assessment is loosely defined as follows: an employer informs an individual that he may be excluded from a job because of past criminal conduct, provides an opportunity for the individual to demonstrate that the exclusion does not properly apply to him; and considers the individual’s additional information should change the decision (looking to job relatedness and business necessity.

The Individualized Assessment section of the document lists “relevant” evidence that an employer should consider.  This is a MUCH more extensive list than in prior statements.  The list includes facts or circumstances surrounding the offense, the number of convictions, the age at the time of the conviction/release from prison, evidence of no related incidents, rehabilitation, employment or character references, fitness for the position, and bonding.

If the individual does not respond to an employer’s request for additional information, the employer can make the decision without the additional information.  How long or under what circumstances an employer must wait is not clear.

The guidance gives many examples in an attempt to clarify when and what an employer can consider.  We will be providing a more detailed overview of the ways to establish job relatedness and business necessity as we review the Guidance in more detail.

The last portion of the Guidance is Titled “Best Practices”, and it digests the EEOC’s recommendations to employers who plan to use criminal records.  Besides the expected recommendations to train personnel on Title VII, develop policies and procedures, conduct individualized assessments, keep good records and notes, and maintain confidentiality, the Commission recommends that employers limit inquiries to records for which exclusion would be job related for the position in question and consistent with business necessity.  While this is not as specific as a “ban the box” limitation, it does suggest that employers need to review their background screening program to make sure they are asking for defensible information.

The Commission approved the guidance by a vote of 4-1, with Republican Constance Barker providing the lone no vote.

Click here to read EEOC press release

Click her to read the actual guidance

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