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New EEOC Enforcement Guidance Regarding Employer Use Of Arrest And Conviction Records
William C. Strock, Janet H. Ayyad
Employers who consider arrest and conviction records when making employment decisions should be aware that the Equal Employment Opportunity Commission (the "EEOC") has issued new enforcement guidance regarding the issue.
On April 25, 2012, the EEOC announced the issuance of an updated enforcement guidance entitled "Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964" (the "Guidance"). The Guidance clarifies and updates the EEOC’s longstanding policy concerning the use of arrest and conviction records in employment decisions and sets forth the Commission’s position on the proper use of arrest and conviction records. The Guidance consolidates previous EEOC policy statements regarding the issue into a single document. It provides illustrations of how Title VII applies to various scenarios that an employer might encounter when considering the arrest or conviction history of a current or prospective employee.
Title VII – Disparate Treatment and Disparate Impact
Title VII prohibits discrimination in employment based on race, color, national origin, religion, or sex. The statute does not prohibit an employer from requiring applicants or employees to provide information regarding arrests, convictions or incarceration. Nevertheless, using arrest and conviction records as a measure to prevent the hiring of an applicant or as a measure to discipline or terminate an individual’s employment could improperly limit the employment opportunities of some protected groups. In particular, the Guidance focuses on employment discrimination based on race and national origin that could result from the use of arrest and conviction records in employment decisions.
Title VII liability for employment discrimination is determined using two analytic frameworks: "disparate treatment" and "disparate impact." Regarding disparate treatment, an employer is liable for violating Title VII if the evidence demonstrates that the employer rejected applicants of one race (e.g., African American) based on their criminal record, but hired similarly situated white applicants with comparable criminal records. The Guidance discusses the various kinds of circumstantial evidence that may be used to establish that race, national origin, or other protected characteristics motivated an employer’s use of criminal records in a selection decision under the disparate treatment model of proof. Regarding the disparate impact model of proof, an employer is liable for violating Title VII if the plaintiff demonstrates that the employer’s neutral policy or practice, such as a record of criminal conviction(s), has the effect of disproportionately screening out members of a Title VII-protected group and the employer fails to demonstrate that the policy or practice is job related for the position in question and consistent with business necessity.
Job Related and Consistent with Business Necessity
The Guidance rejects any blanket exclusion on the hiring of individuals with a criminal record. Rather, the Guidance opines that an employer should either (a) perform a validation of the conviction hiring exclusion standard under the Uniform Guidelines on Hiring Selection Procedures; or, (b) apply a practical case-by-case individual analysis. Arrests and convictions are treated differently. An arrest record alone may not be used to deny an employment opportunity. Regarding convictions, it is the EEOC’s position that employers, in each instance, must make an individualized assessment considering the nature of an applicant’s conviction(s), the period that has passed since the applicant’s last experience with the criminal justice system and the nature of the position(s) for which the applicant is being considered, as well as giving the applicant an opportunity to explain why the criminal record should not disqualify the person from employment. Additional factors to be considered, according to the EEOC, are (i) the circumstances surrounding the offense; (ii) the individual’s age at the time of conviction or release from prison; (iii) the length and consistency of employment history before and after the offense; and (iv) rehabilitation efforts. According to the Commission’s Guidance, the employer could then determine if disqualification because of the criminal record is job related and consistent with business necessity.
Update Policies and Practices
While the Guidance is not the final word, the courts may give it deference and the EEOC certainly will use it to enforce Title VII. Thus, employers should examine their policies and practices in light of this Guidance to lessen any potential liability for Title VII violations.
A Question-and-Answer (Q&A) document regarding the updated guidance document is also available.
If you have any questions regarding the EEOC’s recent Guidance, please contact one of the following attorneys: