ALERT: EEOC Enforcement Guidance on Consideration of Arrest and Conviction Records in Employment Decisions

June 15, 2012

On April 25, 2012, the Equal Employment Opportunity Commission (“EEOC”) issued a detailed Enforcement Guidance on the use of arrest and conviction records by employers in employment decisions. In short, the Enforcement Guidance indicates that an employer’s use of an employee’s or potential employee’s criminal history in making employment decisions may in some instances violate the prohibition against employment discrimination under Title VII of the Civil Rights Act of 1964, as amended.

Title VII prohibits employment discrimination based on race, color, religion, sex, or national origin. The Enforcement Guidance notes that in the last 20 years there has been a significant increase in the number of Americans who have been involved with the criminal justice system, and therefore an increase in the number of persons with criminal records in the working population. Most importantly, the Enforcement Guidance emphasizes that conviction rates are particularly high for African American and Hispanic men when compared to their white counterparts. The EEOC decided to update its Enforcement Guidance with regard to the use of criminal records in light of employer’s increased access to criminal history information.

The Enforcement Guidance does not create or change existing law, but is noteworthy for its lengthy discussion about the use of criminal records in employment decisions, most particularly with regard to the fact that the use of prior convictions in employment decisions can have a disparate impact on minorities which in and of itself can lead to a violation of Title VII. That is, a covered employer can be liable for violating Title VII if a plaintiff demonstrates that he was treated differently because of his race, national origin or another protected basis. The obvious scenario is where an employer treats a white employee differently from a similarly situated minority employee. Another way that an employee can show discriminatory treatment is by demonstrating that an employer’s seemingly race-neutral policy or practice has the effect of disproportionately impacting the protected group of persons, and the employer fails to demonstrate that its policy or practice is “job related for the position” and “consistent with business necessity”. It is clear from the Enforcement Guidance that the EEOC is taking the position, which position is supported by case precedent, that because many more Hispanic and African American men have conviction records than their white counterparts, employer’s use of conviction records in employment decisions can have a disparate impact on Hispanic and African Americans and therefore violate Title VII.

An employer’s evidence of a racially-balanced workforce will not be enough to disprove disparate impact.

To defeat a disparate impact claim, the employer must demonstrate that the challenged practice is job related for the position in question and consistent with business necessity. At least one federal court has held that an employer engaged in a discriminatory practice by following a policy of disqualifying for employment any applicant with a conviction for a crime other than a minor traffic offense. The courts will look to several factors in order to determine whether an employer’s exclusion of a particular applicant is job related for the position and consistent with business necessity, including: 1) the nature and gravity of the offense or conduct; 2) the time that has passed since the offense or conduct and/or completion of a sentence; and 3) the nature of the job held or sought. The Enforcement Guidance suggests that for an employer to establish that a “criminal conduct exclusion” that has a disparate impact is job related and consistent with business necessity, the employer needs to show that its policy operates to “effectively link specific criminal conduct, and dangers, with the risks inherent in the duties of a particular position.”

In order to avoid a possible claim of unlawful employment discrimination based on the use of prior criminal convictions, employers are urged to use “targeted exclusions” designed to exclude individuals from particular positions based upon specific criminal conduct within a defined time using the three factors noted above. The EEOC also suggests that it would often be appropriate for an employer to utilize an “individualized assessment” by which an employer would inform the individual that may be excluded because of his prior criminal conduct, so that individual has an opportunity to demonstrate that that exclusion should not apply to him.

It has long been the law in Pennsylvania that only felony and/or misdemeanor convictions may be considered by the employer when making employment decisions, and only to the extent to which the conviction/s relate to the applicant’s suitability for employment in the position for which the applicant has applied. 18 Pa.C.S.A. §9125 (b). In light of this longstanding law, and considering the EEOC’s new focus on the potential violation of Title VII when an employer makes an employment decision based on a person’s prior criminal history, employers would be well advised to tread cautiously in this regard. For further information on this topic, or to discuss your existing or proposed policies or practices, please contact Ethan O’Shea, Esquire at 215-661-0400 or EOShea@HRMML.com.

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