In brief, the new guidance’s position is more aggressive, affirming that employers cannot automatically disqualify applicants with criminal records, and that their screening policies need to be consistent and structured for “individual assessment.” The guidance’s main points state that:
- An arrest record does not establish that criminal conduct has occurred, and an exclusion based on an arrest, in itself, is not job related and consistent with a business necessity. However, an employer may make an employment decision based on the conduct underlying an arrest if such conduct makes the individual unfit for the particular position.
- A conviction record will usually serve as sufficient evidence that a person engaged in a particular conduct. In certain circumstances, however, there may be reasons not to rely on the conviction record alone when making an employment decision.
- A violation may occur when an employer treats criminal history information disparately for different applicants or employees, based on their race or national origin (disparate treatment liability). An employer’s neutral policy (e.g., excluding applicants from employment based on certain criminal conduct) also may disproportionately impact protected-class individuals and may violate the law if not job related and consistent with a business necessity (disparate impact liability)
The EEOC specifies two circumstances in which employers will meet the “job related and consistent with a business necessity” defense:
- The employer validates the criminal conduct exclusion for the particular position under the Uniform Guidelines on Employee Selection Procedures (i.e., if there is data or analysis about criminal conduct as being related to subsequent work performance or conduct;) or
- The employer develops a targeted screen considering at a minimum the nature of the crime, the time elapsed, and the particular job. The employer’s policy then provides an opportunity for an individualized assessment for those individuals identified by the screen to determine if the policy, as applied, is job related and consistent with a business necessity.
The guidance further asserts that although Title VII does not require individualized assessment in all circumstances, the use of a screen that does not include such assessment is more likely to violate its provisions. As an example of individualized assessment process, the EEOC recommends providing the applicants an opportunity to explain why they should not be denied a position due to the criminal record. The guidance also specifies the following factors that employers should assess:
- Facts or circumstances surrounding the offense or conduct;
- Number of charges of which the individual was convicted;
- Older age at the time of conviction, or release from prison;
- Evidence that the individual performed the same type of work, post-conviction, with the same or different employer, with no known incidents of criminal conduct;
- Length and consistency of employment before and after the offense or conduct;
- Rehabilitation efforts, e.g., education/training;
- Employment or character references and any other information regarding fitness for the particular position; and
- Whether the individual is bonded under a federal, state, or local bonding program.
The guidance recognizes that some employers are subject to federal statutory and/or regulatory requirements that prohibit them from hiring individuals with criminal records for certain positions. The EEOC notes that its new guidance does not preempt such federal guidelines, and explains that employers may be subject to a claim under Title VII if they scrutinize individuals to a higher degree than required under applicable federal requirements.
As in its previous version, the EEOC’s new guidance is not meant to be a deterrent to conducting background checks. But it should serve as a reminder that hiring policies and practices must be structured in compliance with the law.