Employers often develop criminal conviction exclusion policies to avoid hiring individuals who may pose a risk to the employer. In doing so, employers are generally trying to avoid hiring individuals whom they suspect may engage in negative behavior such as theft, fraud, and violence. Criminal conviction exclusion policies can play an important role as they can help circumvent things like negligent hiring claims, financial loss, and damage to an employer’s reputation. However, despite an employer’s well-intentioned reasoning behind developing criminal conviction exclusion policies, if the policy does not operate in a way that carefully identifies relevant convictions with a tight nexus to the position in question, potential discrimination claims may accompany these policies.
What is the EEOC?
For context, I would like to first explain Title VII. Title VII is the federal law that prohibits employers from discriminating against any individual because of such individual’s race, color, national origin, sex, and religion. Title VII created the EEOC to interpret and enforce the law. As part of the EEOC’s enforcement responsibilities, the EEOC investigates Title VII complaints to decide whether there is reasonable cause to believe a Title VII violation occurred and issues complainants’ right to sue letters. Additionally, the EEOC can file lawsuits based on complainants’ charges of discrimination.
How does the EEOC interpret the relationship between employers’ use of criminal conviction exclusion policies and Title VII?
In 2012, the EEOC issued an informational document that is intended to be used by employers considering the use of criminal records in their selection processes to avoid Title VII unlawful discrimination. The informational document is entitled, “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act” (“Guidance”). Although the Guidance is not the law, courts regularly look to EEOC interpretations when making their decisions. Thus, it would be wise for employers to strictly follow the Guidance.
While the Guidance makes it clear that employers can conduct criminal record background checks, an employer’s use of criminal record information can result in Title VII discrimination. The Guidance cites two types of Title VII discrimination for which employers need to be aware when using criminal records to make an employment decision: Disparate Treatment Discrimination and Disparate Impact Discrimination. Today’s blog will focus on criminal conviction exclusion policies and Title VII disparate impact discrimination.
Disparate impact discrimination can occur when an employer’s criminal conviction exclusion policy, that appears neutral on its face, operates in a way that disproportionately excludes Title VII protected groups. It is important to note that the Guidance emphasizes that African Americans and Hispanics are arrested and incarcerated in numbers disproportionate to their representation in the general population, and as a result, criminal conviction exclusion policies are likely to have a disparate impact based on race and national origin.
Can an employer implement a criminal conviction exclusion policy that operates in a way that disproportionately excludes Title VII protected groups without violating Title VII?
It depends. If statistics do in fact show that certain Title VII protected groups are disproportionately convicted at a disproportional rate to their representation in the population, the employer must overcome that finding in one of two ways. First, the employer can present more narrowly drawn statistics showing that the protected group is not convicted at a disproportionate rate. Alternatively, even when the employer’s criminal conviction exclusion policy has a disparate impact on a Title VII protected group, the employer’s policy generally will not result in disparate impact discrimination if it is job related for the position in question and consistent with business necessity. This is significant because an employer can proactively implement measures to combat disparate impact claims.
Essentially, for a criminal conviction exclusion policy to be job related for the position in question and consistent with business necessity, the employer must effectively link the criminal conviction and its unacceptable risks to a particular job position. If the employer successfully implements such a process, they can likely show that there is a compelling need to maintain the policy, and thus, the employer’s policy likely will not result in disparate impact discrimination.
Does the Guidance describe steps an employer can take to ensure its criminal conviction exclusion policy is job related and a business necessity?
Yes. The Guidance mentions two circumstances in which an employer can consistently meet the job related and consistent with business necessity defense. Let’s focus on the use of targeted screens, since they are more prevalent in practice. A targeted screen is when an employer evaluates each individual by considering, at a minimum, the three factors recognized in Green v. Missouri Pacific Railroad (“Green Factors”).
- The first factor the employer must consider is the nature and gravity of the offense or conduct. When evaluating this factor, the Guidance instructs employers to consider the harm caused by the crime, the legal elements of a crime, and whether the crime is classified as a misdemeanor or felony.
- Second, employers must consider the time that has passed since the offense or conduct and/or completion of the sentence. Although the Guidance does not pinpoint a specific time in which criminal records become immaterial, the Guidance does note that there is a time at which a former criminal is no longer any more likely to recidivate than the average person, and thus, employers need to consider studies demonstrating how much the risk of recidivism declines over a specified time.
- Last, but certainly not least, the employer must consider the nature of the job held or sought. To assist with this analysis, the Guidance states that employers should consider job title, job duties, the job’s essential functions, the circumstances under which the job is performed, and the environment in which the job’s duties are performed.
If after a targeted screen using the Green Factors, the employer concludes that they have effectively linked the criminal record and its unacceptable risks to a particular job position, then the employer can feel more comfortable that the targeted exclusion is job-related for the position in question and a business necessity.
If you follow the above-mentioned EEOC Guidance, you can reduce the chances that your criminal conviction exclusion policy will violate Title VII. Remember, an employer’s criminal conviction exclusion policy should only exclude individuals from an explicit position for specified criminal conduct within a well-defined time period, as directed by the Green Factors.
How can InCheck help?
Here at InCheck, compliance is a top priority, and we strive to keep clients
well-informed of the various requirements of federal, state, and local laws and regulations which must be followed. While we cannot provide legal advice, we are always happy to explain to our clients our understanding of various laws’ requirements for informational purposes. Additionally, we can provide our clients with sample documents (e.g., consumer report disclosure, authorization, pre-adverse action notice, adverse action notice) and white papers on various topics.
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