June 21, 2012 - 2:52 PM
Topics: Employee Hiring, Discipline & Termination
In late April, the Equal Employment Opportunity Commission (“EEOC”) published new guidelines related to (a) how employers should manage and handle inquiries into arrest and criminal conviction records of applicants and employees, and (b) making employment and hiring decisions where criminal backgrounds are part of the consideration. Although the EEOC Enforcement Guidance memorandums are not binding precedent, many judges review and consider them when issuing and deciding litigated matters. In addition, they will be relied on heavily by the EEOC (and probably the DFEH), in any relevant administrative inquiry being conducted under Title VII (or FEHA).
According to the Enforcement Guidance, statistical evidence demonstrates that broad exclusions for employment or promotion for anyone that has any type of criminal record has an adverse impact on certain minorities including Hispanics and African-Americans. Thus, unless the employer can demonstrate a legitimate and necessary business reason for such a broad exclusion, an employer who implements a broad automatic exclusion from employment/promotion for any criminal conviction will be risking an disparate impact lawsuit or claim. In light of the EEOC’s Enforcement Guidance, employers in most cases should avoid implementing broad exclusion policies or practices for anyone with a criminal record and, instead, should conduct an individualized assessment that considers (a) the nature of the crime, (b) the time elapsed, and (c) the nature of the job to determine if the conviction should serve as a bar to employment/promotion.
The EEOC Enforcement Guidance contains a series of suggested best practices for employers who are considering criminal record information when making employment decisions. The Enforcement Guidance best practices provide:
- Eliminate policies or practices that exclude people from employment based on any criminal record.
- Train managers, hiring officials, and decisionmakers about Title VII and its prohibition on employment discrimination.
Developing a Policy
- Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct.
- 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.
- Identify the criminal offenses based on all available evidence.
- Determine the duration of exclusions for criminal conduct based on all available evidence.
- Include an individualized assessment.
- Record the justification for the policy and procedures.
- Note and keep a record of consultations and research considered in crafting the policy and procedures.
Train managers, hiring officials, and decisionmakers on how to implement the policy and procedures consistent with Title VII.
Questions about Criminal Records
- When asking questions about criminal records, limit inquiries to records for which exclusion would be job related for the position in question and consistent with business necessity.
- Keep information about applicants’ and employees’ criminal records confidential. Only use it for the purpose for which it was intended.
California employers should review these Enforcement Guidelines, along with state laws that address this issue (see e.g., California Labor Code 432.8 (prohibiting California employers from using certain marijuana related convictions in making employment decisions), to ensure that their policies and practices are in compliance. For a complete copy of the new EEOC Enforcement Guidance on Consideration of Arrest and Convictions Records in Employment Decisions, click here.