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One Size Does Not Fit All: Eeoc Guidance Regarding Employer's Use Of Criminal Records In Employment Decisions

May 04, 2012 BY Meredith Guerrero

       In recent months, the EEOC has expressed concern regarding employers' use of uniform employment policies and practices.  Historically, consistency was considered the key to avoiding alleged or actual discrimination.  Recently, however, the EEOC has increasingly advised employers to engage in individualized assessments on a case-by-case basis.  For example, the EEOC has recommended that employers engage in an interactive dialogue with an employee with a disability to determine what accommodations may be reasonable in light of that particular employee's limitations.  The EEOC has sued companies that have implemented and enforced policies terminating employment after a specified period of time - even when that period of time is substantially longer than the job-protected period allowed by the Family and Medical Leave Act.  With its recently released guidelines on the use of background checks, the EEOC has again emphasized that "one size fits all" employment policies should be avoided.

          On April 25, 2012, the EEOC issued Enforcement Guidance on the use of arrest and conviction records in employment decisions under Title VII.  The EEOC has taken the position that because arrest and conviction rates for African Americans and Hispanics are disproportionately higher than Caucasians, the use of criminal background checks to screen out applicants necessarily has a disparate impact on these groups, unless certain steps are taken by employers.  The Enforcement Guidance is not controlling authority; however, it provides insightful guidance on how the EEOC will view employers’ policies and handle complaints by employees and applicants regarding such policies.

           The EEOC advises that employers use conviction records, not arrest records, as an arrest alone is not proof of criminal conduct.  Many arrests do not result in criminal charges and, even if they do, charges are sometimes later dismissed.  An employer may permissibly consider the specific conduct underlying the arrest, however, and how that conduct may affect a person's fitness for a particular job assignment.

          The EEOC also reiterated that employers should be able to demonstrate that their use of criminal convictions in hiring decisions bears a demonstrable relationship to successful performance of the jobs for which it is used.  An employer should be able to demonstrate that any criminal-conduct exclusion "operates to effectively link specific criminal conduct, and its dangers, with the risks inherent in the duties of a particular position."

          The EEOC places the burden squarely on employers to show that specific past criminal conduct poses an unacceptable risk for the particular job at issue.  The EEOC has taken the position that individuals who are denied an employment opportunity because of a criminal background may have viable discrimination claims when: (1) denial of an employment opportunity was based solely on an arrest; (2) the employer used a blanket exclusion that simply screened out all persons who have ever been convicted of a crime; (3) the employer has a reputation for excluding persons with criminal backgrounds or discouraging them from applying for positions; or (4) the employer has expressed stereotypical views concerning the criminality of certain racial or ethnic groups.

          Therefore, the EEOC recommends that employers develop a targeted screening process for applicants/employees considering at least the nature of the crime, the time elapsed and the nature of the job, and then provide an opportunity for an individualized assessment for people excluded by the screen to determine whether the policy as applied is job related and consistent with business necessity.  The EEOC recommends that this individualized assessment consist of: (1) notice to the individual that she/he has been screened out because of a criminal conviction; (2) an opportunity for the person to demonstrate that the exclusion should not be applied due to her/his particular circumstances; and (3) consideration by the employer as to whether the additional information provided by the individual warrants an exception to the exclusion and shows that the policy as applied is not job related and consistent with business necessity.   

          The EEOC advises that employers consider:

  • the facts or circumstances surrounding the offense or conduct;
  • the number of offenses for which the individual was convicted;
  • the age of the person at the time of conviction or release from prison;
  • evidence that the  individual performed the same type of work, post conviction, with the same or different employer, with no known incidents of criminal conduct;
  • the length and consistency of employment history before and after the offense or conduct;
  • rehabilitation efforts, e.g., education or training;
  • employment of character references and any other information regarding fitness for the particular position; and
  • whether the individual is bonded under a federal, state or local bonding program.

          In developing a policy for the use of criminal convictions in hiring decisions, the EEOC recommends that employers: (1) identify essential requirements of the job and the actual circumstances under which the job will be performed; (2) determine specific offenses that may demonstrate unfitness for performing such jobs; and (3) determine the duration for exclusions for criminal conduct.

          As always, documentation is key.  We recommend that employers document the individualized process taken with each applicant/employee and record the justification for all hiring decisions in which criminal convictions play a role.  The EEOC recommends that employers request only information that relates to categories of convictions that they have determined are relevant to the position in question and that employers keep information relating to criminal convictions confidential.

          If you have specific questions regarding the Enforcement Guidance or how it affects your hiring and promotion policies and procedures, or if you need assistance updating your employment policies, please contact any of the members of Drew Eckl and Farnham’s Employment Law Section - Joe Chancey at (404) 885-6222 or  [email protected]; Dan Kniffen at (404) 885-6411 or  [email protected]; Megan Mathews Noble at (404) 885-6142 or [email protected]; and Meredith Guerrero at (404) 885-6321 or [email protected]

The Journal is a publication for the clients of Drew Eckl & Farnham, LLP. It is written in a general format and is not intended to be legal advice to any specific circumstance. Legal Opinions may vary when based upon subtle factual differences. All rights reserved. 

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H. Michael Bagley
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