On April 25, 2012, the Equal Employment Opportunity Commission (“EEOC”) issued new guidance to employers on the use of an applicant or employee’s criminal history to make employment decisions.  The published guidance is entitled “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964” (the “Guidance”).  It can be found atwww.eeoc.gov/laws/guidance/arrest_conviction.cfm

The Guidance was effective immediately.  The EEOC also issued a related Question and Answer guide to address employers’ anticipated questions.  This document can be found atwww.eeoc.gov/laws/guidance/qa_arrest_conviction.cfm.

Reason for the Guidance

The Guidance is designed to “update and consolidate” the EEOC’s prior policy statements about the use of criminal record information.  It was spurred by recent cases alleging that reliance on criminal records to make hiring decisions has a disproportionate impact on African American and Hispanic applicants. Specifically, the EEOC noted that “African Americans and Hispanics are arrested at a rate that is 2 to 3 times their proportion of the general population.”  If current incarceration rates do not change, about 1 in 17 White males will serve some time in prison while 1 in 6 Hispanic, and 1 in 3 African American, males will serve time in prison.  Thus, a policy of disqualifying applicants solely because of their criminal record will disproportionately impact African Americans and Hispanics.

Use of Criminal Records

The Guidance does not prohibit the use of criminal background information to make employment decisions. However, the EEOC states that a blanket policy or practice of automatically excluding everyone with a criminal record from employment, unless required by federal law, will, in the agency’s opinion, violate Title VII.  To avoid liability, an employer who rejects a candidate in a protected category based on his/her criminal record must demonstrate that the exclusion was “job related and consistent with business necessity for the position in question”.

Green Factors

To satisfy that burden, employers who use criminal background information to make employment decisions must develop and use a targeted screen enabling them to assess the candidate and the position.  In a 1975 decision, Green v. Missouri Pacific Railroad, the 8th Circuit Court of Appeals identified three factors that are relevant to determining if a decision to exclude a candidate for consideration based on his/her criminal record is job related for the position in question and consistent with business necessity (the “Green factors”).

The EEOC adopted the three Green factors, stating that a policy or practice of using the following factors to decide whether to exclude individuals with a criminal record will support an argument that the decision was a permitted targeted, rather than a prohibited automatic, exclusion.

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

Employers must consider and weigh the above factors before deciding whether to exclude an individual with a criminal record for consideration for a particular position.

Individual Assessment

While use of the Green factors may help an employer avoid liability, the Guidance also states that making anindividualized assessment provides additional protection against the EEOC finding a violation of Title VII because such an assessment enables employers to consider more complete information about the applicant or employee.  An employer makes an individualized assessment simply by giving the applicant or employee the opportunity to demonstrate that excluding him/her because of a past criminal record is not job related or consistent with business necessity.  The Guidance notes that relevant information an individual might provide includes the following.

  • Evidence that the criminal record was inaccurate.
  • Mitigating circumstances surrounding the offense.
  • The number of the individual’s convictions.
  • The applicant’s age at the time of the offense.
  • Evidence that the individual performed the same or similar work after his/her conviction without incident.
  • The length and consistency of the individual’s employment history before and after the offense.
  • Rehabilitation efforts.
  • Employment or character references.
  • That the individual was bonded under a federal, state or local bonding program.

If an individual does not provide requested additional information, the employer is free to make its employment decision without the information.

Arrests

The Guidance also states that employers should not base employment decisions on arrests.  According to the EEOC, only convictions should be considered since a conviction is evidence that the individual committed the offense while an arrest is not evidence of criminal activity.

Best Practices

Finally, the EEOC recommends (but does not require) that employers adopt several “best practices” to reduce the possibility that they may unlawfully exclude individuals from employment opportunities.  Those “best practices” are summarized below.

  • Eliminate policies or practices that automatically exclude people from employment due to a criminal record.
  • Train managers and those with hiring authority about Title VII, discrimination and implementing your hiring procedures.
  • Adopt a narrowly tailored written policy and procedure for screening applicants for criminal convictions.
  • Determine the specific offenses that may demonstrate unfitness for specific positions and record the justification.  This determination may be a component of individual job descriptions.
  • If an applicant or employee has a criminal record, conduct an individualized assessment of his/her circumstances.

Massachusetts Employers

Massachusetts imposes additional restrictions on employers’ use of criminal background information to make employment decisions.  As we discussed in prior Legal Alerts, Massachusetts employers may not ask about criminal history in an initial job application.  In addition, employers in Massachusetts must comply with a number of requirements in obtaining and using Criminal Offender Record Information.  Those alerts are available http://marshallhalem.com/articles.php

Employers in Massachusetts also may not ask about the following:

  • an arrest or detention that did not result in a conviction;
  • a first conviction of drunkenness, simple assault, speeding, minor traffic violations, affray, or disturbance of the peace;
  • a conviction of a misdemeanor more than 5 years in the past; or
  • a sealed or juvenile offense.

Effect of Guidance

It is important to note that the Guidance expresses the EEOC’s opinion.  It will guide that agency’s actions; however, if the EEOC files suit against an employer who is not complying with the Guidance, that employer has the right to challenge the Guidance.