September 22, 2015
If a background check reveals that an applicant or employee has a criminal record, such as an arrest or a conviction, the employer must use the information in a manner that does not violate Title VII’s provisions against discrimination. Specifically, because statistics have demonstrated that African-American and Hispanic individuals have higher arrest and conviction rates than other groups, a denial of an employment opportunity based upon arrest or conviction records may be viewed as having a disparate impact on these protected groups, which may amount to unlawful employment discrimination. The United States Equal Employment Opportunity Commission’s (EEOC) April 2012 guidance addresses how employers may permissibly utilize criminal records for employment purposes:
1. Employers may not use an arrest record alone as grounds for denying an employment opportunity. However, an employer may consider the employee’s actual conduct underlying the arrest.
2. The EEOC considers blanket policies that exclude individuals from employment based upon conviction records to be unlawful.
3. Employers may make employment decisions based upon convictions that are job-related and consistent with business necessity. According to the EEOC, employers can show job-relatedness and business necessity through: (a) validation studies showing that the exclusion effectively links specific criminal conduct and its dangers with the risks inherent in the duties of a particular job (this is difficult to do); or (b) conducting a targeted screen to flag individuals who may be disqualified based upon their criminal history, and then giving those persons individual consideration with a chance to explain why the exclusion should not apply to their particular situation. While the EEOC states that an individualized assessment is not mandatory, it can help employers to avoid liability for discrimination claims. Indeed, the language of the EEOC guidance suggests that the EEOC expects employers to conduct individualized assessments.
4. The use of a “targeted screen” requires an employer to consider the nature and gravity of the crime, the time elapsed since the crime or the completion of a sentence, and the nature of the job involved.
5. Many states have enacted laws that exclude individuals with particular criminal histories from certain positions. While the EEOC guidance
purports to preempt any state laws (but not federal laws) to the contrary,it is not yet clear whether the courts will adopt the EEOC’s position
described in the guidance.