According to the EEOC, “The Guidance builds on longstanding court decisions and existing guidance documents that the U.S. Equal Employment Opportunity Commission issued over twenty years ago.”
Selected items from the guidance:
The Guidance focuses on employment discrimination based on race and national origin. An employer’s use of an individual’s criminal history in making employment decisions may, in some instances, violate the prohibition against employment discrimination under Title VII of the Civil Rights Act of 1964, as amended. Arrest and incarceration rates are particularly high for African American and Hispanic men.
The fact of an arrest does not establish that criminal conduct has occurred, and an exclusion based on an arrest, in itself, is not job related and consistent with business necessity. However, an employer may make an employment decision based on the conduct underlying an arrest if the conduct makes the individual unfit for the position in question.
A conviction record will usually serve as sufficient evidence that a person engaged in particular conduct. In certain circumstances, however, there may be reasons for an employer not to rely on the conviction record alone when making an employment decision.
The Commission believes employers will consistently meet the “job related and consistent with business necessity” defense if the employer develops a targeted screen considering at least the nature of the crime, the time elapsed, and the nature of the job. The employer’s policy then provides an opportunity for an individualized assessment for those people identified by the screen, to determine if the policy as applied is job related and consistent with business necessity. (Although Title VII does not require individualized assessment in all circumstances, the use of a screen that does not include individualized assessment is more likely to violate Title VII.).
The EEOC gave examples of best practices for employers considering criminal records when making employment decisions, including:
- Eliminate policies or practices that exclude people from employment based on any criminal record (without considering at least the nature of the crime, the time elapsed, and the nature of the job).
- Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct (provides for an individualized assessment for those people identified by the screen).
- Train managers, hiring officials, and decisionmakers about Title VII, its prohibition on employment discrimination and how to implement the policy and procedures consistent with Title VII.
- When asking questions about criminal records, limit inquiries to records for which exclusion would be job related for the position in question and consistent with business necessity.
- Keep information about applicants’ and employees’ criminal records confidential. Only use it for the purpose for which it was intended.
The EEOC recommends individualized assessments of individuals that may be excluded due to past criminal conduct. Examples of relevant information that may be considered in an individualized assessment include:
- Facts or circumstances surrounding the offense or conduct
- Number of offenses for which the individual was convicted
- Age at the time of conviction, or release from prison
- Evidence that the individual performed the same type of work, post conviction, without incidents of criminal conduct
- Length and consistency of employment history before and after the offense
- Rehabilitation efforts, e.g., education/training
- Employment or character references
- Whether the individual is bonded under a federal, state, or local bonding program
Employers should review and modify, as necessary, their background check policies and practices.
Background Check Laws & Regulations: EEOC Guidance On Use Of Criminal Records