An employer’s use of an individual’s criminal history in
making employment decisions may, in some instances, violate the prohibition
against employment discrimination under Title VII of the Civil Rights Act of
1964, as amended.
A violation may occur when an employer treats criminal history
information differently for different applicants or employees, based on their
race or national origin (disparate treatment liability). Alternatively, an
employer’s neutral policy (e.g., excluding all applicants from employment based
on certain criminal conduct) may disproportionately impact some individuals
protected under Title VII, and may violate the law if the exclusion is not
job-related and consistent with business necessity (disparate impact
liability).
Whether an employer’s policy
treats a protected group differently is usually easy to determine. If an
employer’s background check process treats an applicant from a protected group
differently than an applicant outside that group (regardless of whether the
other applicant is also in a protected group), then a finding of disparate
treatment is likely. However, determining whether a neutral criminal background
check policy disparately impacts applicants in a protected group is more
difficult. If an applicant can show that the employer’s policy eliminates
members of a protected group more than applicants that are not part of the
protected group (which may be as simple as showing that members of the
protected group are arrested and convicted at a higher rate) the policy may
have a disparate impact. The employer must then show that the policy is
justified in light of the job requirements and the necessities of the business.
In determining whether the policy is job related and
consistent with business necessity, the EEOC emphasizes that arrests and
convictions must be treated differently.
An arrest does not establish that criminal conduct has
occurred, and an exclusion based on an arrest, in itself, is not job-related
and consistent with business necessity. However, an employer may make an
employment decision based on the conduct underlying an arrest if the conduct
makes the individual unfit for the position in question. The important
distinction is the focus on the arrestee’s conduct, not the arrest. In short,
the conduct surrounding the arrest may be considered if it would be sufficient
to deny employment if the applicant had not been arrested.
In
contrast, a conviction record will usually serve as sufficient evidence that a
person engaged in particular conduct. In certain circumstances, however, there
may be reasons for an employer not to rely on the conviction record alone when
making an employment decision. Employers should either create a screening
process that is narrowly tailored, with the process validated per the Uniform
Guidelines on Employment Selection Procedures, or develop a screening process
where, upon screening out an applicant, an individualized assessment is
conducted.
An individualized assessment
should allow an applicant to demonstrate that he or she should not be excluded.
The employer should consider a number of factors during the assessment,
including: the circumstances of the conduct, the number of convictions, whether
the same kind of work was performed post-conviction, the employment history
before and after the conviction, rehabilitation efforts and character
references. If the applicant does not cooperate with the employer’s efforts to
gather information, a decision may be rendered with the information the
employer was able to gather. While not mandatory, the EEOC does note that a
screening process with an individual review will be less likely to violate
Title VII.
Where federal laws and
regulations disqualify convicted applicants from certain occupations, the
employer is entitled to deny employment based on applicable convictions.
However, state and local laws that limit or prohibit the employment of
applicants with certain criminal convictions are preempted by Title VII and are
not a viable defense.
The following are examples from
the EEOC of best practices for employers who consider criminal record
information when making employment decisions:
General
·
Eliminate policies or practices that exclude
people from employment based on any criminal record.
·
Train managers, hiring officials, and decision
makers about Title VII and its prohibition on employment discrimination.
Developing a Policy
·
Develop a narrowly-tailored written policy and
procedure for screening applicants and employees for criminal conduct.
·
Identify essential job requirements and the
actual circumstances under which the jobs are performed.
·
Determine the specific offenses that may
demonstrate unfitness for performing such jobs.
o
Identify the criminal offenses based on all
available evidence.
·
Determine the duration of exclusions for
criminal conduct based on all available evidence.
o
Include an individualized assessment.
·
Record the justification for the policy and
procedure.
·
Note and keep a record of consultations and
research considered in crafting the policy and procedures.
·
Train managers, hiring officials, and decision
makers on how to implement the policy and procedure consistent with Title VII.
Questions about Criminal Records
·
When asking questions about criminal records,
limit inquiries to records for which exclusion would be job-related for the
position in question and consistent with business necessity.
Confidentiality
·
Keep information about applicants’ and
employees’ criminal records confidential. Only use it for the purpose for which
it was intended.
