Yesterday afternoon, the EEOC announced its long awaited, and, by employers, long dreaded, Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII (along with a short and sweet Q&A).
The Guidance is not nearly as bad for employers as it could have been. Anyone who feared that the agency would over-reach and proclaim that pre-employment criminal background checks per se violate Title VII will be greatly relieved. As SHRM points out:
SHRM is pleased that the guidance does not appear to impose a one-size-fits-all set of rules on employers and seems to take into consideration that every employer will have different needs and concerns in the use of criminal background checks in hiring.
Nevertheless, the Guidance is not perfect. For example, “as a best practice, and consistent with applicable laws,” the EEOC “recommends that employers not ask about convictions on job applications.” While I certainly appreciate the EEOC’s recommendation, I’m not sure what “applicable laws” it references. This attempt to codify “ban the box” is one clear example where the EEOC is over-reaching.
Perhaps the most controversial piece of the new Guidance is the EEOC’s belief that to survive a potential disparate impact claim, employers must develop a targeted screen that considers at least the nature of the crime, the time elapsed, and the nature of the job, and then must provide an opportunity for an individualized assessment to determine if the policy as applied is job related and consistent with business necessity.
In engaging in this individualized assessment, the EEOC directs employers to consider the following factors:
Individualized assessment generally means that an employer informs the individual that he may be excluded because of past criminal conduct; provides an opportunity to the individual to demonstrate that the exclusion does not properly apply to him; and considers whether the individual’s additional information shows that the policy as applied is not job related and consistent with business necessity.
The individual’s showing may include information that he was not correctly identified in the criminal record, or that the record is otherwise inaccurate.
Other relevant individualized evidence for employers to consider includes:
- The facts or circumstances surrounding the offense or conduct;
- The number of offenses for which the individual was convicted;
- Older age at the time of conviction, or release from prison;
- Evidence that the individual performed the same type of work, post conviction, with the same or a different employer, with no known incidents of criminal conduct;
- The length and consistency of employment history before and after the offense or conduct;
- Rehabilitation efforts (e.g., education/training);
- Employment or character references and any other information regarding fitness for the particular position; and
- Whether the individual is bonded under a federal, state, or local bonding program.
I’m not aware of any requirement under Title VII that requires an individualized assessment in all circumstances. In the EEOC’s opinion, however, forgoing a screen that includes the individualized assessment will make it difficult, if not impossible, for an employer to justify a criminal background check as job related and consistent with business necessity. Yet, applying this individualized assessment for all applicants will impose a heavy burden on employers. And, the greater an employer’s attrition and hiring needs, the heavier that burden will become.
The EEOC concludes by suggesting some best practices for employers who consider criminal record information when making employment decisions:
- Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct.
- The policy should Identify essential job requirements and the actual circumstances under which the jobs are performed.
- The policy should also determine the specific offenses that may demonstrate unfitness for performing such jobs, and the duration of exclusions for criminal conduct.
- Record the justification for the policy, procedures, and exclusions, including a record of consultations and research considered in crafting the policy and procedures.
- Train managers, hiring officials, and decisionmakers on how to implement the policy and procedures consistent with Title VII.
There is a lot to digest in this comprehensive policy guidance. For example, the EEOC discusses the differences between arrest records and conviction records, and provides specific examples of exclusions that will and will not fall under the umbrella of job related and consistent with business necessity.