EEOC Revisits Criminal History Guidance: Key Considerations for Employers

The U.S. Equal Employment Opportunity Commission (EEOC) has taken steps toward rescinding its Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII. Although the proposed rescission remains under review with the Office of Management and Budget and has not yet taken effect, it signals a potential shift in the EEOC’s approach to criminal background screening.

Employers should be aware that using arrest or conviction records in employment decisions may still result in liability under federal law.

Background

The EEOC’s Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII (Guidance) addressed how employers’ use of arrest and conviction records could create liability under Title VII. Although the Guidance itself does not have the force of law, it summarized years of EEOC guidance and court rulings on the use of criminal records in the workplace.

The Guidance focused primarily on race and national origin discrimination and identified two theories under which criminal history screening practices may violate Title VII: disparate treatment and disparate impact.

Disparate Treatment

An employer may violate Title VII if it treats applicants or employees differently because of race, color, religion, sex, or national origin when considering criminal history information.

For example, an employer could face liability if it excludes a Latino applicant based on a criminal record while hiring a non-Latino applicant with a comparable criminal history.

Disparate Impact

The Guidance also addressed disparate impact liability, which can arise even when an employer has no discriminatory intent.

Under this theory, a facially neutral criminal history screening policy may violate Title VII if it disproportionately excludes members of a protected group and cannot be shown to be job-related and consistent with business necessity.

The EEOC relied heavily on national arrest and incarceration data indicating that African American and Hispanic people are arrested and incarcerated at rates disproportionate to their representation in the general population. Based on this data, the Guidance took the position that criminal record exclusions may disproportionately affect certain racial and ethnic groups and therefore warrant scrutiny under Title VII.

The Green Factors

The Guidance identified two methods employers could use to establish that a criminal conduct exclusion is job-related and consistent with business necessity:

1. Validate the exclusion under the Uniform Guidelines on Employee Selection Procedures, when relevant data or analysis is available regarding the relationship between criminal conduct as subsequent work performance or behavior; or
2. Develop a targeted screening process based on the factors identified in Green v. Missouri Pacific Railroad, 549 F.2d 1158 (8th Cir. 1977).

Those factors include:

• The nature and gravity of the offense or conduct;
• The time that has passed since the offense or conduct, or the completion of the sentence; and
• The nature of the job sought or held.

The Guidance strongly encouraged employers to develop targeted screening policies rather than rely on blanket exclusions.

The Importance of Individualized Assessments

A notable feature of the Guidance was its recommendation that employers provide an individualized assessment for applicants screened out by a criminal record policy.

Under the Guidance, employers were encouraged to consider:

• The facts and circumstances surrounding the offense;
• The number of offenses for which the individual was convicted;
• The individual’s age at the time of conviction or release from prison;
• Evidence that the individual performed the same type of work after the conviction, with the same or a different employer, without known incidents of criminal conduct;
• The length and consistency of the individual’s employment history before and after the offense or conduct;
• Rehabilitation efforts, such as education or training;
• Employment or character references and other information regarding the individual’s fitness for the position; and
• Whether the individual is bonded under a federal, state, or local bonding program.

Although the EEOC acknowledged that individualized assessments are not required in every circumstance, it stated that criminal history screening policies that do not provide an opportunity for such assessments are more likely to violate Title VII.

Arrest Records Versus Conviction Records

The Guidance drew a significant distinction between arrests and convictions.

According to the EEOC, an arrest alone does not establish that criminal conduct occurred. Therefore, an employment decision based solely on an arrest record generally would not be considered job-related and consistent with business necessity.

However, employers may consider the underlying conduct for an arrest if the conduct is relevant to the position and demonstrates that the individual may be unfit for the role.

Conviction records are treated differently. The Guidance recognized that a conviction generally provides sufficient evidence that the underlying conduct occurred. Nevertheless, an employer may have reasons not to rely solely on a conviction record when making an employment decision.

What Does the Proposed Rescission Mean?

The proposed rescission would remove the EEOC’s formal Guidance, but it would not eliminate the underlying legal principles upon which much of the Guidance was based.

Disparate treatment and disparate impact remain viable theories of liability under Title VII of the Civil Rights Act of 1964.

As a result, employers may still face legal challenges to their criminal history screening policies even if the EEOC ultimately rescinds the Guidance.

Practical Takeaways for Employers

Despite the possible rescission, employers should continue to:

• Review criminal history screening policies to ensure they are tailored to legitimate business needs.
• Avoid blanket exclusions that automatically disqualify applicants based solely on criminal history.
• Evaluate whether criminal conduct exclusion are job-related and consistent with business necessity by applying the Green factors: the nature of the offense; the time that has passed and the duties of the position.
• Differentiate between arrest records and conviction records.

Employers may consult with Bradley employment attorneys when evaluating the use of criminal history information in hiring and other employment decisions.