On April 25, 2012, the US Equal Employment Opportunity Commission (EEOC) issued a guidance document for employers regarding the use of arrest and conviction records to deny individuals employment. The Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 (“Enforcement Guidance”) states that criminal information obtained during background checks cannot be used to screen potential or current employees unless the conviction is related to the field of work in which the candidate is seeking employment. Although this is not a formal court decision and is not legally binding, it does support against employers utilizing blanket “no hire” policies for applicants with criminal backgrounds.
The document was generated because of the proliferation of employment policies which adversely affect minority populations (also known as “disparate impact”). Disparate impact occurs when an employer enforces a policy or procedure that is not “job related and consistent with business necessity” and that affects a protected group more than a group as a whole. An employer is in violation even when an exclusion based on criminal history would unjustifiably exclude individuals in a protected class, i.e. individuals of a particular race); or if an employer treats two employees with the same criminal history differently based on their protected characteristics.
Two general rules an employer should follow, according to the EEOC, are:
1. Understand that a policy that excludes every individual with a criminal record is an unsound policy and may be unlawful. Employers must do a further analysis, looking at the nature of the crime, the time elapsed since the crime was committed and the nature of the job being applied for.
2. An employment decision excluding an applicant based on an arrest (not a conviction) will not be found to be job-related or consistent with business necessity. However, an employer may exclude an individual based on a conviction that deems the candidate unfit for the position being applied for. Also discussed in the guidance document are the differences between arrests and convictions. An adverse employment decision based on an arrest alone is strongly advised against unless the employer determines that the conduct makes the candidate unfit for the position.
The courts will ultimately determine whether a policy governing the use of background checks is unlawful as the EEOC suggests in the Guidance.
Sources: The Law Firms of Ballard Spahr LLP and Archer & Greiner, PC; Employer Relations Solutions; The U.S. Department of Equal Employment Opportunity Commission’s website (www.eeoc.gov).