TEGL_31_11_att5.pdf

ETA Advisory File Text

M Y T H B U S T E R R E E N T R Y A Product of the Federal Interagency Reentry Council On Hiring Criminal Records Guidance Revised Oct. 2012 On April 25 2012 the U.S. Equal Employment Opportunity Commission issued its 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 Title VII 42 U.S.C. 2000e. The Guidance updates consolidates and supersedes the Commission s 1987 and 1990 policy statements on this issue as well as the relevant discussion in the EEOC s 2006 Race and Color Discrimination Compliance Manual Chapter. These rules ap ply to all employers that have 15 or more employees including private sector employers the federal government and federal contractors. Below are answers to common questions about the Guidance. 1 Does this Guidance prohibit employers from obtaining and using criminal background reports about job applicants or employees No t he Guidance does not prohibit employers from obtaining or using arrest or conviction records to make employment decisions. The EEOC simply seeks to ensure that such information is not used in a discriminatory way. 2 How could an employer use criminal history information in a discriminatory way Two ways -- First Title VII prohibits disparate treatment discrimination. E mp loyers should not treat job applicants or employees with the same criminal records differently because of their race national origin or another protected characteristic disparate treatment discrimination . Second Title VII prohibits disparate impact d iscrimination. Employers should not use a policy or practice that excludes people with certain criminal records if the policy or practice significantly disadvantages individuals of a particular race national origin or another protected characteristic a nd does not accurately predict who will be a responsible reliable or saf e employee. In legal terms it is not job related and consistent with business necessity . 3 How would an employer prove job related and consistent with business necessity Is it burdensome Proving that a criminal record exclusion is job related and consistent with business necessity is not burdensome. The employer can prove this if it 1 considers at least the nature of the crime time since the criminal conduct occurred and the nature of the job in question and 2 gives an individual who may be excluded by the screen an opportunity to show why he or she should not be excluded. 4 Why should an arrest record be treated differently than a conviction record An arrest record does not establish that a person engaged in criminal conduct. Arrest records may also be inaccurate e.g. mistakenly identify the arrestee or incomplete e.g. do not state whether charges were filed or dismissed against the arrestee . Thus an arrest record alone should not be used by an employer to take an adverse employment action. But an arrest may trigger an inquiry into whether the conduct underlying the arrest justifies an adverse employment action. For More Information EEOC Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII http www.eeoc.gov laws guidance arrest conviction.cfm EEOC Qu estions and Answers About the EEOC s Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII http www.eeoc.gov laws guid ance qa arrest conviction.cfm MYTH People with criminal records are automatically barred from all employment. FACT An arrest or conviction record does NOT automatically bar individuals from all employment What is a REENTRY MYTH BUSTER This Myth Buster is one in a series of fact sheets intended to clarify existing federal policies that affect formerly incarcerated individuals and their families. Each year more than 700 000 individuals are released from state and federal prisons. Another 9 million cycle through local jails. When reentry fails the social and economic costs a re high -- more crime more victims more family distress and more pressure on already -strained state and municipal budgets. Because reentry intersects with health and housing education and employment family faith and community well -being many federal agencies are focusing on initiatives for the reentry pop ulation. Under the auspices o f the Cabinet -level interagency Reentry Council federal agencies are working together to enhance community safety and well -being assist those returning from prison and jail in becoming productive citizens and save taxpayer dollars by lowering the direct and collateral costs of incarceration. For more information about the Reentry Council go to www.nationalreentryresourcecenter.org reentry -council