CLIENT ALERT / EEOC – Guidance on Employer Use of Arrest and Conviction Records Print

The EEOC issued a press release on April 25, 2012 regarding an updated Enforcement Guidance relating to employers use of arrest and conviction records and its impact on Title VII.  While Title VII provides for protection for employees based on sex, color, religion, race and/or national origin, the Guidance focuses on race and national origin for disparate treatment and disparate impact claims in the use of arrest and conviction data.  The EEOC cites statistics for the proposition that national data supports a finding that criminal record exclusions have a disparate impact on race and national origin and that arrest and incarceration rates are particularly high for African-American and Hispanic men.

The Guidance discusses disparate treatment (intentional conduct targeted at a class) which involves a plaintiff demonstrating that an employer’s use of arrest and/or conviction data treats him or her differently because of his or her race, national origin, or other protected class.  The Guidance also addresses disparate impact liability (unintentional conduct affecting a particular class).  Disparate impact claims are recognized under Title VII when an employer uses a neutral policy but that neutral policy has the effect of adversely impacting individual or groups of individuals based on their race, color, religion, sex, or national origin.  An employer can defend a disparate impact liability claim when it shows that its neutral policy (i.e. the use of conviction data) is job-related and consistent with business necessity.

The EEOC Guidance states that excluding applicants and/or employees for arrests alone is not considered by the EEOC to be job-related and consistent with business necessity.  However, an assessment of the “conduct” underlying the arrest may be used to exclude an applicant and/or employee as long as the exclusion is not based on the arrest alone.

Of significance, the EEOC “recommends that employers not ask about convictions on job applications and that, if and when they make such inquiries, the inquiries be limited to convictions for which exclusion would be job-related for the position in question and consistent with business necessity”.

The EEOC then offers two avenues for an employer to meet the “job-related and consistent with business necessity” defense for disparate impact claims.  The first method is for an employer to validate the criminal conduct screen-out criteria for the position in question per the Uniform Guidelines on Employee Selection Procedures (Uniform Guidelines).  See 29 CFR §1607 et seq. including §1607.5 which discusses general standards for “validity studies” connecting empirical data (predictive / corroborated data) to the elements of job performance.

The second method is for the employer to develop “targeted exclusions” considering the nature of the crime, the time elapsed since the crime and/or incarceration, and the nature of the job.  This is referenced as the so-called “Green Factors” by the EEOC based on Green v. Missouri Pacific Railroad, 523 F.2d 1290 (8th Circuit 1975).  In Green, the employer had a policy that disqualified from employment anyone convicted of any crime, except for minor traffic offenses.  The Green Court decided this was unlawful in accordance with Title VII because the policy was not consistent with business necessity (this was a disparate impact case).  Mr. Green was an African-American who was convicted in 1967 for refusing military induction and served 21 months in a military prison.  The “Green Factors” from this case included the following:

1.  The nature and gravity of the offense or conduct;
2.  The time that has passed since the offense/conduct and/or the completion of the sentence;
3.  The nature of the job held or sought.

The EEOC posits that an appropriate employer policy or practice excluding individuals from particular positions for specified criminal conduct within a defined period of time, “as guided by the Green Factors, is a ‘targeted exclusion’.  ‘Targeted exclusions are tailored to the rationale for their adoption, in light of the particular criminal conduct and jobs involved, taking into consideration fact-based evidence, legal requirements, and/or relevant and available studies”.

The EEOC recommends further that employers perform an “individualized assessment” which provides the individual so targeted for exclusion an opportunity to respond to the information generated regarding the criminal conviction.  Somewhat cryptically, the EEOC states that “Title VII thus does not necessarily require individualized assessment in all circumstances.  However, the use of individualized assessments can help employers avoid Title VII liability by allowing them to consider more complete information on individual applicants or employees, as part of a policy that is job-related and consistent with business necessity”.

Finally, it should be noted that some employers are subject to Federal prohibitions and restrictions with respect to certain criminal conduct and the EEOC Guidance does not affect those employer obligations.  (The EEOC references that “Compliance with Federal laws and/or regulations is a defense to a Charge of Discrimination”). 
While disparate treatment and disparate impact issues relating to the use of arrest and/or conviction data and its application in Title VII has been around some time, the recent EEOC Guidance certainly places more of a focus on case law generated over the past 20 years or so and places additional obligations on employers who use arrest and conviction data in excluding applicants and/or employees from particular jobs.

Recommendations

Employers who have existing questions posed to applicants regarding arrest and/or convictions should review them.  The application of policies that exclude all applicants and/or employees who are convicted of criminal conduct (excepting traffic violations) will invite EEOC scrutiny.  An employer should be able to justify, based on business necessity, the reason why a person with a conviction should not be employed in a particular job.  By way of example, someone with a remote conviction for OUI should not necessarily be precluded from employment in a job that involves no driving at all – and the more the remote the conviction is, the more problematic the disparate impact allegation.  Please note that it is unclear what the outcome will be of the EEOC’s “recommendation” that arrest and conviction data not be utilized on the application.  In one case, the EEOC noted an online application which foreclosed the applicant from continuing on the online application process once the applicant checked “yes” regarding a conviction.  The EEOC indicated this process would not survive disparate impact scrutiny.

While it’s always good to perform an overall review of applications and the hiring process, the EEOC Guidance should “encourage” employers to utilize and document the business necessity of using exclusionary conviction data for particular jobs and whether and to what extent an “individualized” assessment is warranted.  At a minimum, the EEOC Guidance provides fodder for plaintiff counsel to further explore application and hiring protocols in this area.  Forewarned is forearmed.

 

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