The Equal Employment Opportunity Commission (“EEOC” or “Commission”) recently issued new enforcement guidance about employers’ use of arrest and conviction records as the basis for employment decisions. The guidance updates existing EEOC interpretations, which it last issued in 1987 and 1990. In addition to the enforcement guidance, the Commission also simultaneously published a series of related questions and answers as a simplified appendix. The EEOC analyzed the use of arrest and conviction records in view of Title VII of the Civil Rights Act of 1964 (“Title VII”), which prohibits employment discrimination on the basis of race, color, religion, sex, or national origin.
The EEOC Analyzes the Use of Arrest and Conviction Records under Title VII’s Liability Theories
The Commission’s guidance acknowledges that Title VII lacks any specific protection for persons with criminal records. Thus, an employer’s exclusion of job applicants because of their either arrest or conviction records only violates Title VII if the use of such criminal record information involves discrimination on the basis of race, color, religion, sex, or national origin. The EEOC and the courts use either, or both, of two legal theories to analyze whether unlawful employment discrimination has occurred: (a) disparate treatment or (b) disparate impact.
The guidance explains the disparate treatment liability theory as an employer’s treating a person differently because of her or his membership in a class protected by Title VII. Because of national statistics showing the disproportionate arrest and conviction rates for African-Americans and Hispanics, the guidance limits its comments to discrimination on the basis of race and national origin. The guidance identifies five types of evidence that show disparate treatment:
- Biased statements,
- Inconsistent practices,
- More favorable treatment of similarly situated non-minority individuals,
- Matched pair testers, and
- Statistical evidence.
The guidance also describes the disparate impact liability theory. It has two parts. First, the employer uses a neutral policy or practice whose effect eliminates members of Title VII protected groups disproportionately. Second, the employer lacks proof of the policy or practice’s job relatedness and business necessity. In the guidance, the EEOC finds that national data shows that criminal record exclusions have a disparate impact based on either race or national origin. The Commission acknowledges that an employer could rebut such national data by presenting either regional or local data that reveals proportionate arrest and conviction rates of African-Americans and Hispanics.
The guidance further explores the issues as to whether a policy or practice meets the job relatedness and consistent with business necessity tests. With respect to arrests, the Commission emphasizes that they merely report an allegation of criminal conduct and provide no evidence that any crime occurred. The EEOC, however, concedes that in some instances, the conduct that prompted a person’s arrest may provide a legitimate reason upon which to base an employment decision.
The guidance views convictions as different from arrests. A conviction establishes that the convicted person committed a crime. It notes that even convictions present some reliability issues, such as, inaccurate data base information. Because of them, the Commission recommends a two-part best practice. First, it urges employers to avoid making inquiries about convictions on job application forms. Second, the EEOC recommends an employer’s limiting any inquiries made later in the hiring process to ones for which it would have a job related reason consistent with business necessity to eliminate the applicant from consideration.
Job Relatedness Requires a Connection between a Prior Conviction and Current Job Risks
To use prior convictions as a reason for eliminating applicants from consideration without Title VII liability, an employer must link the convictions to risks inherent in a particular job’s duties. The guidelines recommend a two-part analysis. They identify the starting point for such an analysis as an assessment of the three following factors:
- The nature of the offense,
- The time elapsed since the offense, and
- The nature of the job at issue.
The guidelines next urge employers to do an individualized assessment of persons excluded by the prior convictions screen. Such an assessment requires gathering specific information from a person excluded by her or his having had a prior conviction. This two-step analysis enables an employer to determine whether the policy in the case of a specific applicant satisfies the job related and consistent with business necessity requirements.
Federally Mandated Exclusion of Persons with Prior Convictions Satisfy Title VII’s Requirements But Similar State or Local Exclusions May Not
In the new guidelines, the Commission addresses laws that prohibit persons previously convicted of specified crimes from either holding certain positions or obtaining required occupational licenses. The EEOC recognizes compliance with such federal laws as a defense to Title VII claims. The Commission, however, takes a less conciliatory approach to restrictions on the employment of persons previously convicted of specified crimes under either state or local law. The guidelines find Title VII violations if such state or local laws prevent employers from employing individuals with prior convictions without the links necessary to establish the job relatedness and business necessity of excluding such persons from the specific job.