On April 25, 2012 the Equal Employment Opportunity Commission (“EEOC”) released its most recent enforcement guidance, once again turning its attention to employers’ consideration of arrest and conviction records in making employment decisions.

The full title of the guidance is “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964” (no credit for creativity to the Office of Legal Counsel).  Of course, this enforcement guidance is not the first time the EEOC has spoken to the issue of arrest and conviction records in the employment context, having issued prior (and now superseded) policy statements on the topic in 1987 and 1990.

To justify its efforts this time around, the Commission emphasized that it has investigated and decided a total of seven charges challenging the discriminatory use of criminal history information since at least 1969, and went out of its way in issuing this guidance to remind employers of both its prior policy statements on the matter as well as its 2008 Eradicating Racism and Colorism from Employment Initiative, which identified criminal record prohibitions as one of the “employment barriers” that the Commission linked to race and color discrimination in the work force.  Also, to further justify revisiting the topic, the Commission noted that improvements in technology have given employers easier access to criminal history information.  It also mentioned a request from the Third Circuit Court of Appeals in a 2007 decision that the EEOC provide more in-depth legal analysis and updated research on the subject.

In issuing their new enforcement guidance, the agency actually praised itself for the work it did in this area, including having “examined social science and criminological research, court decisions, and information about various state and federal laws, among other information, to further assess the impact of using criminal records in employment decisions.”  Then, in denying a fundamental change in its positions on Title VII with this latest guidance, the EEOC summarized its long-standing policy approach in this area as follows:

  • An arrest does not establish that criminal conduct has occurred, as stated in the Commission’s 1990 policy statement on Arrest Records. However, an employer may act based on evidence of conduct that disqualifies an individual for a particular position.
  • Convictions are considered reliable evidence that the underlying criminal conduct occurred, as noted in the Commission’s 1987 policy statement on Conviction Records.
  • 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 pursue Title VII disparate impact charges.
  • A policy or practice that excludes everyone with a criminal record from employment will not be job related and consistent with business necessity and therefore will violate Title VII, unless it is required by federal law.

While the Agency claims its long-standing policies have not changed, this new enforcement guidance seems to alter how the EEOC analyzes the “job related” and “consistent with business necessity” standard which could justify a criminal record exclusion, and that is noteworthy.  The EEOC believes there are two circumstances where employers could consistently meet that defense and avoid a disparate impact charge.  The first instance could occur where the employer validates excluding an applicant for the particular position in question in light of the Uniform Guidelines on Employee Selection Procedures — assuming sufficient data or analysis about criminal conduct as it relates to subsequent work performance or behaviors actually exists.

The second hypothetical situation that the EEOC seemingly would approve of is where the employer develops a targeted screen considering the nature of the crime, the time elapsed and the nature of the job; however, the employer’s policy still must provide 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. This includes giving the applicant notice of why he or she was excluded together with an opportunity to explain why he or she shouldn’t be, and then a consideration by the employer whether an exception based on the explanation is warranted.

While the EEOC acknowledges that Title VII does not require an individualized assessment in all circumstances, the Agency’s announced intent on “interpreting” the language of the Title VII statute as if it does clearly suggests that the use of a screen that does not include individualized assessment is more likely to violate Title VII.  In other words, an employer can have a policy screening candidates with a criminal history, but a criminal history which triggers that screen or policy should not be dispositive on the hiring decision.

This most recent enforcement guidance also acknowledges that federal laws and regulations which restrict or prohibit employing individuals with certain criminal records provide a defense to a Title VII claim.  That seems appropriate enough, but a closer look reveals the EEOC’s true reluctance to yield to these other statutes.  Essentially, the agency minimizes them to a “defense” as opposed to an absolute bar against Title VII challenges to criminal record exclusions.  Moreover, the EEOC has an ever lesser opinion of state and local laws and regulations, declaring that any such state or local law that requires or prevents an act declared unlawful in employment practice under Title VII is pre-empted.

This latter point presents probably the most difficult quandary for employers who don’t want to run squarely into the EEOC’s crosshairs.  Violate or disregard a state or federal statute to keep the agency happy, or abide by law to avoid a negligent hiring lawsuit at the risk of having to defend a disparate impact charge of discrimination.  Because there’s no precise blueprint on the best approach from employer to employer, consulting competent legal counsel is (once again) advised.

Tom Kleeh concentrates his practice in labor and employment law. Mr. Kleeh has experience defending employers in protected class litigation and claims in discrimination claims against employers based upon age, race, sex, disability, religion and national origin as well as claims of sexual and other forms of unlawful harassment. He has defended claims for breach of contract, retaliatory discharge, defamation, invasion of privacy, and other employment-related torts.
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