EEOC Issues Enforcement Guidance Regarding Employers' Use of Criminal History Information
Last week, the United States Equal Employment Opportunity Commission (“EEOC”) issued an “enforcement guidance” regarding the use of criminal history information in employment decisions. An “enforcement guidance” is a statement of the EEOC’s views regarding the proper enforcement of anti-discrimination laws. Although an enforcement guidance does not necessarily describe how a court would analyze an issue, it is based on legal precedent and suggests how the EEOC intends to approach an issue.
Yesterday’s enforcement guidance focused extensively on the use of criminal history information with respect to “disparate impact” claims under Title VII of the Civil Rights Act, the federal law that prohibits race and national origin employment discrimination. Title VII prohibits not only intentional discrimination, but also “disparate impact,” that is, facially-neutral employment policies that have a disproportionate negative impact on minorities.
Relying upon nationwide conviction rates for African-Americans and Hispanics, the enforcement guidance makes clear that the EEOC presumes that any employer use of criminal history information during the application process disproportionately excludes racial minority applicants. In essence, the EEOC is taking a “guilty until proven innocent” approach, requiring that employers prove business necessity of their screening procedures. Moreover, to prove business necessity, employers will be required to validate, through statistics, the link between the disqualifying criminal conduct and subsequent work performance. Alternatively, employers can develop a targeted screening process that, at a minimum, takes into account the nature of the applicant’s criminal conviction, the time elapsed since the conviction or punishment, and the nature of the job for which the applicant has applied.
This approach will enable the EEOC to file and investigate more charges of disparate impact, which traditionally have been less common than intentional “disparate treatment” cases, but which present significantly more exposure. To lessen their risk of Title VII disparate impact liability, the EEOC suggests that employers make an individualized assessment of an applicant’s criminal background, but only after deciding to hire the applicant. The EEOC also suggests that employers only request “job related” criminal convictions, instead of a list of all criminal convictions.
The enforcement guidance also echoes the EEOC’s long-held position that mere arrest records are not a proper basis for excluding an applicant and that across-the-board exclusions of applicants with any criminal conviction are not consistent with business necessity. This seems consistent with the Pennsylvania Criminal History Information Act, which prohibits Pennsylvania employers from hiring based solely on an arrest and allows exclusions only for “job related” convictions.
The enforcement guidance’s major ramifications will be discussed at length in a future edition of Barley Snyder’s Employment Law Newsletter. Additionally, Jennifer Craighead, Esq. and David Freedman, Esq. will provide practical guidance for dealing with pre-employment screening issues during their presentation, “Be Careful What You Test For . . . It Might Land You in Court!” at the Barley Snyder Employment Law Seminar, which will be held May 11 at the Eden Resort in Lancaster. Please click on the link below to RSVP for this free event.
For the time being, employers should understand that the EEOC plans to challenge employers’ use of criminal history information aggressively. Employers, therefore, should consider familiarizing themselves with the EEOC’s enforcement guidance and reviewing their policies and procedures for compliance with the EEOC’s stated best practices.
