6 Best Practices for Employers Considering Use of Criminal Record Information

In this new video, BLR Legal Editor Susan Prince discusses the elements of EEOC’s Enforcement Guidance on employer use of criminal record information when making employment decisions. Prince covers the basic elements of the EEOC Guidance—and explains some best practices EEOC outlined for employers considering use of criminal record information.

Hello, my name is Susan Prince. I am a Legal Editor at Business and Legal Resources and I’m here with you today to go over some of the main points of the new EEOC Guidance on employers using arrest and conviction records to make employment decisions.

Many employers use background checks. They’re very useful for hiring the best people, screening out candidates who have lied on their applications, figuring out who might present a risk of violence or theft at work, and to gain information on an employee’s character and suitability for a job.

But… the EEOC in its new Enforcement Guidance warns employers that using an individual’s criminal history when making employment decisions might be discrimination under Title VII of the Civil Rights Act of 1964.

Here are the main points of the Guidance.

The EEOC discusses the differences between arrest and conviction records. They state that an arrest does not establish that criminal conduct has occurred. Period. And an exclusion based on an arrest, in itself, is not job related and consistent with business necessity. However, an employer can base an employment decision on the conduct underlying an arrest if the conduct makes the individual unfit for the job.

In contrast, a conviction record will usually serve as sufficient evidence that a person engaged in particular conduct.

The Guidance also discusses disparate treatment and disparate impact analysis under Title VII.

First, disparate treatment liability. A violation may occur when an employer treats criminal history information differently for different applicants or employees, based on their race or national origin.

Second, disparate impact liability. An employer’s neutral policy such as not hiring people based on criminal conduct may disproportionately impact some individuals protected under Title VII. This may violate the law if its not job related and consistent with business necessity.

So, “job related and consistent with business necessity”, what does this mean?

Employers will consistently meet this standard, according to the EEOC, if:

1. The employer validates the criminal conduct exclusion for the job using the Uniform Guidelines on Employee Selection Procedures or
2. Two, the employer develops a targeted screen considering at least the nature of the crime, the time elapsed, and the nature of the job. This would allow an individualized assessment for those people identified by the screen, rather than a blanket policy, for example, not to hire.

The EEOC outlined some best practices for employers who are considering criminal record information when making employment decisions.

1. Eliminate policies or practices that exclude people from employment based on any criminal record. Just don’t do it!
2. Train your managers, hiring officials, and decisionmakers about Title VII and discrimination.
3. Write a policy and procedures for screening applicants and employees for criminal conduct. The policy should:
• Identify essential job requirements and the circumstances under which the jobs are performed.
• Determine the specific offenses that may demonstrate someone is not fit for a job. Use available evidence and research for this.
• Determine the duration of exclusions for criminal conduct based on all available evidence.
• Include an individualized assessment.
• Record the justification for the policy and procedures.
• Keep a record of consultations and research considered in crafting the policy and procedures.
4. Train managers, hiring officials, and decisionmakers on how to implement the policy consistent with Title VII.
5. When asking questions about criminal records, limit inquiries to records for which exclusion would be job related and consistent with business necessity.
6. Confidentiality! Keep information about applicants’ and employees’ criminal records confidential. Only use it for the purpose for which it was intended.

I hope this information was helpful. Remember, you don’t want the EEOC knocking on your door for violating this guidance!