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EEOC issues updated guidance on using arrest and criminal records in hiring

Article courtesy of SBAM Approved Partner ASE

By Michael J. Burns  
On April 25, the Equal Employment Opportunity Commission (EEOC) issued updated guidance to employers on the use of arrest and conviction records in hiring and promotion.

For over twenty years the EEOC has monitored whether discrimination could occur when employers used criminal records to disqualify applicants for employment. The EEOC bases its position on current and projected incarceration rates. In 2007, 3.2% or 1 in 31 of all adults in the U.S. were under one or another form of correctional control (jail, parole, or probation). At current rates of incarceration, the number would more than double to where, in the years to come, 6.6% of all persons born in 2001 or later are projected to spend at least some time in the corrections system during their lifetimes. And since Hispanics and African-Americans are arrested 2-3 more often than other groups, and (according to recent surveys) up to 92% of employers subject some or all of their job candidates to criminal background checks, the EEOC is concerned that job discrimination against those groups will be worse in the future than it is now.

The EEOC sees criminal conviction record discrimination occurring in two forms:

Disparate Treatment: This would occur when an employer rejects, for example, a minority candidate because of his or her criminal record but hires a white candidate with a similar criminal record and with the same qualifications.

Disparate Impact: This occurs when a neutral employment policy or practice has the effect of disproportionately excluding members of the protected classes, and the employer cannot show that the discriminatory practice is job related and borne of business necessity.

In issuing this updated guidance, the EEOC maintains that it has not changed its position on the use of criminal records. It does, however, provide more in-depth analysis than its earlier Guidances issued in 1987 and 1990.

The EEOC Guidance provides recommended best practices for employers:
  • Do not have a policy that excludes applicants for any criminal record.
  • Train managers, hiring personnel and decision makers on Title VII and its prohibition.
  • Develop narrowly tailored policies and procedures for screening for criminal background.
  • When asking about criminal records, limit inquiries to records for which exclusions would be job related for the position in question and consistent with business necessity.
  • Keep information about applicant’s and employee’s criminal records confidential.
  • Develop a narrowly tailored written policy and procedures for screening for criminal history information. The policy should do the following:
    • Identify essential job requirements and the actual circumstances under which the jobs are performed
    • Determine the specific offenses that may demonstrate unfitness for performing such jobs
    • Determine the duration of exclusions for criminal conduct based on all available evidence
    • Record the justification for the policy and procedures
    • Note and keep a record of consultations and research considered in crafting the policy and procedures
Employers concerned that the EEOC is overreaching should also note the following:
  • Despite its concern over this issue, the EEOC still concedes that employers have the right to access and use criminal conviction data on applicants as a deterrent to theft, fraud, workplace violence and even negligent hiring lawsuits. Additionally many local, state and federal laws and regulations require criminal background checks.
  • The EEOC avoided a more controversial limitation to the use of criminal records.
  • The EEOC did not change its position on how far back criminal records could be used.
According to the employment law firm Seyfarth Shaw, employers should consider three factors when evaluating criminal history information and making individualized assessments:
  • The nature and gravity of the offense or offenses including the harm caused, the legal elements of the crime, and the classification as misdemeanor or felony
  • The time that has passed since the conviction and/or completion of the sentence
  • The nature of the job held or sought, which involves more than examining just the job title, but also specific duties, essential functions, and environment

Are you concerned about the potential criminal records of your applicants, but also determined not to illegally discriminate? Consider allowing ASE to do the background checking, including the criminal checks, you need done. Contact Francis Chapman at 248-223-8058 or fchapman@aseonline.org.

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