How to Handle the EEOC’s New Stance on Arrest or Conviction Records
In April, the U.S. Equal Employment Opportunity Commission (EEOC) issued new enforcement guidance on the use of arrest or conviction records in employment decisions. Since then, employers across the country have been tackling the unexpected task of engaging with the EEOC’s new stance.
The EEOC is tasked with enforcing Title VII of the Civil Rights Act of 1964, as amended, specifically the prohibition again employment discrimination based on race, color, religion, sex, or national origin. When it comes to an employer’s use of arrest or conviction records Title VII prohibits discrimination in the form of either Disparate Treatment or Disparate Impact.
Disparate Treatment is fairly easy to identify. An employer that chooses to invite a Caucasian applicant with a criminal conviction in for a second interview while rejecting a similarly situated Latino applicant with the same conviction on the basis of that conviction and their race may be in direct violation of Title VII.
Disparate Impact may be more difficult to determine because it occurs when an employer’s neutral policy or practice has the effect of disproportionately screening out a protected group and the employer cannot demonstrate that the policy or practice is job-related and consistent with business necessity.
Because of this potential for hidden bias, the EEOC has long been critical of the use of arrest records in employment decisions. For example, in 2008, people of Hispanic ethnic background were arrested for federal drug charges at a rate of approximately three times their proportion of the general population. Because arrests are not proof of criminal conduct and an individual is innocent unless proven guilty, the EEOC contends that making employment decisions based on arrest records alone may create a Disparate Impact. They acknowledge that arrest records may identify underlying conduct that could make an individual unfit for the position in question and that this conduct could be relevant for employment purposes.
Although criminal convictions and incarcerations are also disproportionately distributed by race and national origin in the U.S., the use of these records has not been considered a Disparate Impact because they represent conduct proven through the due process of law. As of April 25, 2012 the EEOC has taken a much different view of the use of convictions for employment purposes.
The Enforcement Guidance Today
The litmus tests for employers set out by the EEOC Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 hinge on whether the consideration of a record is:
a) job-related for the position in question and
b) consistent with business necessity.
In 1975, the Eighth Circuit identified three (Green) factors relevant to assessing whether a denial meets these criteria:
- the nature and gravity of the offense or conduct;
- the time that has passed since the offense, conduct and/or completion of the sentence; and
- the nature of the job held or sought.
The EEOC has specifically outlined two circumstances in which it believes employers will consistently meet this standard.
The first involves the validation of an employer’s screening using formal validation techniques per the Uniform Guidelines on Employee Selection Procedures “if data about criminal conduct as related to subsequent work performance is available and such validation is possible.”
Given the EEOC’s own skepticism about the viability of the Validation scenario, this second option offered seems much more attainable for most employers: An employer will consistently meet the standard by developing a targeted screen considering at least the Green factors and then providing an opportunity for an individualized assessment for people excluded by the screen.
The first step for employers seeking a Disparate Impact defense based on the Targeted Screen scenario is to evaluate the positions within their organization and create a screening “matrix” or policy based on the risks associated with each position or type of position. Once this Title VII–neutral, targeted matrix has been created and implemented, the second phase of the defense hinges on the employer providing the opportunity for an individualized assessment for all persons excluded by the screen. What this “interactive process” should look like has not been clearly defined, but it is clear that the individual assessment component is critical to defending a Disparate Impact claim and individuals must have an opportunity to explain special circumstances regarding their criminal conduct.
It is also vital to remember that as employers develop a targeted screen and incorporate the individual assessment into their hiring process, it’s important to determine how these will interact with the requirements of the Fair Credit Reporting Act and other applicable federal, state and local regulations.