by Stephen Woods, Esq., Ogletree Deakins
In April, the EEOC issued an updated “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII.” The guidance, which took effect immediately, has implications for how employers use criminal background checks to screen applicants and employees.
The document summarizes the EEOC’s long-held position that checking arrest and conviction records may have a disparate impact on individuals because of their race or national origin.
According to the EEOC guidance, Title VII violations may occur in two background-check situations:
Disparate treatment—when employers treat criminal history differently for different applicants/employees, based on their race or national origin.
Disparate impact—when an employer’s neutral background check policy or practice disproportionately affects protected individuals, unless the policy is job-related and consistent with business necessity.
Focus on disparate impact
Most of the guidance addresses disparate impact race and national-origin discrimination.
For a disparate impact claim to succeed, the EEOC first must identify the policy or practice causing the disparate impact and then confirm that there is a disparate impact. The practical effect: Employers may expect more EEOC requests for voluminous applicant and hiring data.
Once the EEOC has established disparate impact, the employer has the burden of proving that its policy or practice is job-related and consistent with business necessity. The EEOC guidance repeats the commission’s long-held position that screening for an arrest, by itself, is never job-related and consistent with business necessity.
Reason: An arrest does not prove criminal conduct. Many arrests do not result in convictions.
Targeted screening
Although the EEOC identifies two circumstances allowing employers to establish the “job-related and consistent with business necessity” defense, only one is likely to be useful for most private-sector employers—a targeted screening process that takes into account the following factors:
- The nature and gravity of the offense or conduct
- The time since the offense, conduct or completion of the sentence
- The nature of the job in question.
For any individuals “screened out” by this targeted screening process, the EEOC explains, the employer’s policy should then provide an opportunity for an individualized assessment.
The EEOC stops just short of actually requiring individualized assessments. However, the guidance repeatedly stresses that a screening process that does not include individualized assessments is more likely to violate Title VII.
The between-the-lines message is that individualized assessments are now expected.
Individualized assessment
The guidance provides several factors to consider during the individualized assessment, including some directly relevant ones, such as a showing that the individual was incorrectly identified in the background check. Less-relevant ones include employment or character references.
The second way an employer can satisfy the “job-related and consistent with business necessity” defense is complicated and costly. For each position, the employer must validate the criminal conduct exclusion, by using the EEOC’s “Uniform Guidelines on Employee Selection Procedures” (www.eeoc.gov/policy/docs/factemployment_procedures.html), including its statistical models, to validate that criminal conduct data relates to subsequent work performance.
Best practices?
In what is sure to be a controversial one-sentence “best practice,” the EEOC recommends that employers not ask about convictions on job applications.
The old phrase “the devil is in the details” has never been more apt than with this new EEOC guidance. Although the EEOC opines that the guidance is a natural evolution of its prior guidance, there are some huge changes, including the section on individualized assessment of applicants and employees.
Only time and—unfortunately—lawsuits are likely to determine whether courts think all or only some of the EEOC’s new guidance is correct.
Many in the business community have complained that the guidance was rushed through with no public rule-making or the associated process for public comment.
While courts are required to defer to EEOC guidance like this to some extent, EEOC guidance is not controlling on courts’ interpretation of Title VII and is not entitled to the high level of deference given to federal regulations.
Instead, courts and litigants may refer to the EEOC’s interpretation for guidance, based on the guidance’s thoroughness, the validity of its reasoning and its consistency with earlier EEOC pronouncements.
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Author: Stephen Woods is a shareholder in Ogletree Deakins’ Greenville, S.C., office and chair of the firm’s Background Check Advice Practice Group. Contact him at (864) 271-1300 or stephen.woods@ogletreedeakins.com.
