After more than 20 years, the EEOC has issued a new, more restrictive Enforcement Guidance regarding use of arrest and conviction records to address its concerns that use of such records leads to disparate impacts on members of certain race and national origin groups. The Guidance on Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 narrows the circumstances under which applicants can be excluded based on arrest or conviction records. It has significant implications for the use of criminal background checks in the hiring process and preempts state laws that require or permit the use of such information in a manner inconsistent with Title VII.
The most significant change in the EEOC's new Guidance is that it places a higher burden on employers to prove that use of such information to make adverse selection decisions is "job related and consistent with business necessity." The newly issued Guidance outlines two circumstances under which it believes that employers would usually be found compliant with its mandates:
- The employer validates the criminal conduct exclusion for the position in question in light of the Uniform Guidelines on Employee Selection Procedures (if there is data or analysis about criminal conduct as related to subsequent work performance or behaviors); or
- The employer develops a targeted screen considering at least the nature of the crime, the time elapsed and the nature of the job. (Note that under the previous Guidance, consideration of these factors was sufficient to show that reliance on the records was job related and consistent with business necessity.) Then, the employer's policy 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
For most employers, policies regarding exclusion based on arrest and conviction records generally must include an individualized inquiry regarding the facts and circumstances surrounding each applicant's arrest or conviction. For instance, in its examples, the Guidance states that a blanket policy excluding individuals who have been convicted of any crime related to theft or fraud in the last five years is not job related and consistent with business necessity – even for employees handling sensitive and confidential information. Under the Guidance, companies must apply an individualized consideration to any applicants who would be excluded under such a policy to determine whether the conviction demonstrates that the applicant "poses an elevated risk of dishonesty."
The Guidance offers employer best practices, including:
- Developing a narrowly tailored policy regarding screening applicants and employees.
- Training decision-makers on how to implement the policy.
- Limiting inquiries regarding arrest and conviction records.
- Maintaining information regarding arrest and conviction records confidentially.