By Richard Lehr
During the past several years, the Equal Employment Opportunity Commission (EEOC) has increased its focus on employers’ use of background check information, particularly arrest and conviction records. On April 25, the EEOC issued its revised “Enforcement Guidance on Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964.” The original guidance was issued in 1987 and revised in 1990.
The commission has asserted for several years that arrest and conviction records have a discriminatory impact on African American and Hispanic applicants. Perhaps a culmination of the EEOC’s initiative occurred a month ago with a settlement of more than $3 million with PepsiCo. In that case, discrimination was alleged in the application process based on the use of criminal background information in selecting African American applicants.
Factors to Consider
The EEOC’s guidance statement is in fact “guidance” for employers, not a regulation. Specifically, it establishes the principles the commission will consider when evaluating whether an employer’s use of background information violates Title VII.
The use of arrest records in the hiring process. Arrest records aren’t considered job-related because they have a discriminatory impact based on race and national origin. Although you shouldn’t ask about arrest records, you do have the right to ask applicants if they have any criminal charges currently pending. How you should use the information depends on the job applied for and the nature of the charges.
The nature of the conviction and how it relates to the applied- for position. For example, a theft conviction is relevant to whether an employer in a home-services business hires an applicant. It fact, it’s relevant to various positions within any employer’s organization.
How recent the conviction is and what happened since then. If the conviction occurred some time ago and the individual has behaved responsibly since then, then the conviction shouldn’t have the same weight as a conviction that occurred more recently. However, you may conclude that some convictions, although remote in time, are so serious that you won’t take a chance on the individual. For example, an employer in the health care industry may conclude that an individual convicted of abuse many years ago shouldn’t be hired for a position that involves direct patient care.
An individualized assessment of the applicant rather than a general disqualification. For example, how many offenses was the applicant convicted of? How old was he at the time of conviction? What were the circumstances surrounding the conviction? Did the applicant undergo rehabilitation? Is he bonded? What kind of character references did he provide?
Bottom Line
Several states have enacted statutes limiting employer use of arrest and conviction records. The EEOC guidance recommends that you not include on your employment application questions about convictions. Rather, it suggests asking those questions (when job-related) during the interview process. Our view is that you may continue to ask the question “Have you ever been arrested or convicted?” on the application ― unless, of course, state law requires otherwise. But the real issue is what you do with the information. Don’t maintain a per se “exclusion” rule or practice based on a conviction. Rather, if an applicant answers “yes” to the question, followup to determine what the conviction was for and when it occurred.
Richard Lehr is a founding partner of Lehr Middlebrooks & Vreeland, P.C., in Birmingham, Alabama. He has practiced employment law for more than thirty years, counseling employers regarding developing and implementing workforce change strategies, without provoking litigation or union organizing. He is a frequent contributor to Alabama Employment Law Letter. He may be contacted at rlehr@lehrmiddlebrooks.com.