Alert
Alert
By Julia E. Judish,
05.08.12
The U.S. Equal Employment Opportunity Commission (“EEOC”) recently issued an Enforcement Guidance on employers’ use of arrest and conviction records in hiring, as well as published a final rule clarifying the “reasonable factors other than age”(“RFOA”) defense under the Age Discrimination in Employment Act (“ADEA”). Both the Guidance and the new regulations demonstrate the EEOC’s focus on requiring employers to demonstrate the legitimate, job-related basis for employment actions.
Guidance on Consideration of Criminal History in Hiring
On April 25, 2012, the EEOC issued an Enforcement Guidance on an employer’s use of an individual’s criminal history in making employment decisions under Title VII of the Civil Rights Act of 1964 (the “Guidance”).1 Title VII prohibits employment discrimination based on race, color, religion, sex or national origin. Illegal discrimination can take the form of intentional disparate treatment, or it can be established by showing that a policy or practice has an unjustified disproportionate adverse impact on a protected group. Because national data shows that certain minority groups have higher arrest and conviction rates than non-minorities, an employer’s use of an individual’s criminal history could give rise to a discrimination claim. Specifically, a covered employer would be liable under Title VII when either (1) race, national origin or another protected characteristic motivates the employer’s use of an applicant’s criminal record in making a hiring decision, or (2) the employer’s policy or practice of screening out applicants based on their criminal record has the effect of disproportionately excluding a protected group of applicants, and the employer fails to demonstrate that the policy or practice is job-related and consistent with business necessity.
With respect to disparate impact liability, the EEOC’s new Guidance addresses four key areas. First, because an arrest that does not result in conviction cannot establish that criminal conduct has occurred, an arrest record standing alone may not be used to deny an employment opportunity. An employer may, however, make an inquiry into the circumstances leading to the arrest and determine that an individual is unfit for a position based on the conduct underlying the arrest.
Second, the EEOC takes the position that national data on the disproportionate arrest and conviction rates of African Americans and Hispanics is sufficient to support a finding that an employer’s exclusionary policy based on an applicant’s criminal history has a disparate impact based on race and national origin. The Guidance specifies that the EEOC can rely on national data alone to investigate an employer’s actions further. Although the employer would have an opportunity to show that its policy does not disparately impact the protected group(s), such as through local data on arrest and/or conviction rates or applicant data that differs from the national data, an employer’s evidence that it employs a racially balanced workforce would not constitute a defense to a disparate impact in hiring claim. The burden would then be on the employer to show that its use of criminal histories as an employment screening device was job-related and consistent with business necessity.
Third, the EEOC’s Guidance prohibits an employer from treating a criminal record as an automatic disqualifier for applicants, unless the employer has validated the job-related nature of that screen per the Uniform Guidelines on Employee Selection Procedures standards (if data about criminal conduct as related to subsequent work performance is available and such validation is possible). Given that most employers are unlikely to be able to validate a criminal history screening practice, the EEOC recommends (but does not require) that employers refrain from asking about criminal history on job applications. If employers do inquire about an individual’s criminal history, to avoid potential liability they must consider the circumstances of a conviction, including (i) the nature of the crime, (ii) the time elapsed, and (iii) the nature of the job, followed by an “individualized assessment” of people excluded. The “individualized assessment” should include (a) informing the individual that he may be excluded because of past criminal conduct, (b) providing the individual an opportunity to demonstrate that the exclusion does not properly apply to him, and (c) considering whether the individual’s additional information shows that the policy as applied is not job-related or consistent with business necessity.
Download: EEOC Raises the Bar on Employers to Show that Employment Actions Are Job-Related