Recent EEOC Guidance on Using Criminal History in Employment Decisions

The EEOC recently issued updated guidance on the use of criminal history record information in employment decisions. While the EEOC had previously warned against the use of arrest records in employment decisions, since arrests alone do not establish that criminal conduct occurred, this new guidance stakes out a more extreme position.  Now, the EEOC suggests that even the use of criminal convictions as an absolute bar to employment can have a disparate impact based on race and national origin, thus exposing employers to potential Title VII claims.

For a potential plaintiff to make a claim for discrimination based on the employer’s use of a criminal conviction record, the plaintiff first has to establish that the policy creates a disparate impact.  The burden then shifts to the employer to demonstrate “that the challenged practice is job related for the position in question and consistent with business necessity.”  See Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971).  To meet this rebuttal burden, the employer must show that the policy or practice is one that “bears a demonstrable relationship to successful performance of the jobs for which it was used” and “measures the person for the job and not the person in the abstract.”  See id. 

The new EEOC guidance includes in its recommended “Employer Best Practices” that employers eliminate policies that exclude people from employment based on any criminal record.  In its place, the EEOC suggests that an employer develop a “narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct.”  The EEOC suggests that this policy should identify the essential job requirements and determine the specific offenses that might demonstrate unfitness for performing such jobs.  We believe that conforming to these recommended “best practices” would be somewhat prohibitive for an employer like a charter school, which is going to have so many different types of positions to fill.  While these are the recommended best practices, based on the legal authority on which the EEOC builds its disparate impact argument against using criminal conviction background in employment decisions, there may be other less-burdensome policy options.  Any such policy will have to be closely aligned with requirements of this new guidance, which is essentially using criminal conviction history as an employment “screen” and providing an opportunity for individual review of the policy’s application based on the position sought.

There are two potential circumstances in which the EEOC believes employers will consistently meet the “job related and consistent with business necessity” defense to a disparate impact claim.  They 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 three factors: (i) the nature of the crime; (ii) the time elapsed; and (iii) the nature of the job.  See Green v. Missouri Pacific Railroad, 549 F.2d 1158 (8th Cir. 1977). The employer’s policy then provides an opportunity for an individualized assessment of the screened applicant’s to determine if the policy as applied (barring employment) is job related and consistent with business necessity.

Although Title VII does not require individualized assessment in all circumstances, the EEOC believes that the use of a screen that does not include an individualized assessment is more likely to violate Title VII.  Thus, the EEOC’s guidance confirms that if en employer develops a screening policy that meets these established criteria, then it will satisfy this defense.  However, if an employer’s targeted criminal records screen is sufficiently narrowly tailored to identify criminal conduct with a demonstrably tight nexus to the position in question, the individualized assessment process may not even be required.

To establish that a criminal conduct exclusion that has a disparate impact is job related and consistent with business necessity under Title VII, the employer needs to show that the policy operates to effectively link specific criminal conduct, and its dangers, with the risks inherent in the duties of a particular position.  Policy should therefore include a factor that is job related, but it is possible that this might also be accomplished broadly, such as “any job that involves contact with students or gives access to students.”  This could be applied to cover almost all positions at a public school.  An additional suggestion might be to establish a criminal record review committee process within the school’s employment screening process where the purpose of the committee is to give an opportunity for an individual assessment to “determine if the policy as applied is job related and consistent with business necessity.” 

Please consult your legal counsel for specific guidance relating to the above EEOC Guidance.

Joe Hoffer