TEGL_31_11_att4.pdf

ETA Advisory File Text

Summary and Best Practices from Equal Employment Opportunity Commission EEOC Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 as amended 42 U.S.C. 2000e et seq. -- full Enforcement Guidance available at http www.eeoc.gov laws guidance arrest conviction.cfm EEOC Enforcement Guidance Number 915.002 Date 4 25 2012 Summary An employer s use of an individual s criminal history in making employment decisions may in some instances violate the prohibition against employment discrimination under Title VII of the Civil Rights Act of 1964 as amended. The Guidance builds on longstanding court decisions and existing guidance documents that the U.S. Equal Employment Opportunity Commission Commission or EEOC issued over twenty years ago. The Guidance focuses on employment discrimination based on race and national origin. The Introduction provides information about criminal records employer practices and Title VII. The Guidance discusses the differences between arrest and conviction records. The fact of an arrest does not establish that criminal conduct has occurred and an exclusion based on an arrest in itself is not job related and consistent with business necessity. However an employer may make an employment decision based on the conduct underlying an arrest if the conduct makes the individual unfit for the position in question. In contrast a conviction record will usually serve as sufficient evidence that a person engaged in particular conduct. In certain circumstances however there may be reasons for an employer not to rely on the conviction record alone when making an employment decision. The Guidance discusses disparate treatment and disparate impact analysis under Title VII. A violation may occur when an employer treats criminal history information differently for different applicants or employees based on their race or national origin disparate treatment liability . 2 An employer s neutral policy e.g. excluding applicants from employment based on certain criminal conduct may disproportionately impact some individuals protected under Title VII and may violate the law if not job related and consistent with business necessity disparate impact liability . o National data supports a finding that criminal record exclusions have a disparate impact based on race and national origin. The national data provides a basis for the Commission to investigate Title VII disparate impact charges challenging criminal record exclusions. o Two circumstances in which the Commission believes employers will consistently meet the job related and consistent with business necessity defense are as follows 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 and the nature of the job the three factors identified by the court in Green v. Missouri Pacific Railroad 549 F.2d 1158 8th Cir. 1977 . 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 other federal laws and or regulations that conflict with Title VII is a defense to a charge of discrimination under Title VII. State and local laws or regulations are preempted 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. 42 U.S.C. 2000e-7. Employer Best Practices The following are examples of best practices for employers who are considering criminal record information when making employment decisions. General Eliminate policies or practices that exclude people from employment based on any criminal record. Train managers hiring officials and decisionmakers about Title VII and its prohibition on employment discrimination. Developing a Policy Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct. Identify essential job requirements and the actual circumstances under which the jobs are performed. Determine the specific offenses that may demonstrate unfitness for performing such jobs. o Identify the criminal offenses based on all available evidence. Determine the duration of exclusions for criminal conduct based on all available evidence. o Include an individualized assessment. Record the justification for the policy and procedures. Note and keep a record of consultations and research considered in crafting the policy and procedures. Train managers hiring officials and decisionmakers on how to implement the policy and procedures consistent with Title VII. Questions about Criminal Records When asking questions about criminal records limit inquiries to records for which exclusion would be job related for the position in question and consistent with business necessity. Confidentiality Keep information about applicants and employees criminal records confidential. Only use it for the purpose for which it was intended.