Does your company ask applicants whether they have ever been arrested? If you learn that a job applicant does have an arrest or conviction record, do you automatically eliminate that applicant from further consideration?
According to the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency chiefly responsible for the enforcement of anti-discrimination laws in employment, in some circumstances, rigid adherence to policies or practices such as these could make your company liable for damages for unlawful employment discrimination. Because eliminating applicants on the basis of criminal records per se has a disparate impact on minorities, the EEOC advises
The new (April 2012) EEOC policy pronouncement for employers, employees, and its own investigators takes the position that a blanket prohibition against any job applicant with an arrest record (or even conviction record) could have such a disparate effect in eliminating otherwise-qualified black and Hispanic job applicants as to violate federal statutory prohibitions against discrimination based upon race or national origin. The agency advises employers to base hiring decisions not on a mechanistic application of rules of disqualification, but rather on an “individualized assessment” of an applicant’s fitness for the particular job being filled; an applicant’s criminal record should be considered only if the conduct involved is “job related for the position in question.”
According to the EEOC’s chair, Jacqueline Berrien, the new guidance “clarifies and updates the EEOC’s longstanding policy concerning the use of arrest and conviction records in employment.” Earlier policy statements, from 1987 and 1990, warned that policies excluding any job candidate with a criminal record are not necessarily job-related and may be regarded as pretexts for racial discrimination. The new guideline states that arrest-based prohibitions can have a disparate impact on minorities and thus run afoul of federal job discrimination rules, as codified in Title VII of the Civil Rights Act of 1964.
The new policy statement, entitled, “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964” was unveiled after more than a year of public comment and debate, and became official on April 25th.
The EEOC does not outlaw criminal background checks, but the new guidelines emphasize that employers who run such checks should focus on the candidates’ conduct, rather than just the fact of an arrest or conviction alone, and a history of criminal misconduct should be treated as disqualifying only if it has some relevance to the demands, circumstances, or capabilities of the job being filled.
“Although an arrest record standing alone may not be used to deny an employment opportunity, an employer may make an employment decision based on the conduct underlying the arrest, if the conduct makes the individual unfit for the position in question,” EEOC stated. “The conduct, not the arrest, is relevant for employment purposes.” Naturally, a record of conviction, as opposed to mere arrest (i.e. an accusation) carries greater weight: “[A] record of conviction will usually serve as sufficient evidence that a person engaged in particular conduct, given the procedural safeguards associated with trial and guilty pleas.”
“As a best practice, and consistent with applicable laws, the commission recommends that employers not ask about convictions on job applications and that, if and when they make such inquiries, the inquiries be limited to convictions for which exclusion would be job related for the position in question and consistent with business necessity.”
So, if you’re hiring, you may still screen for criminal history (convictions, far better than mere arrests, in our view). The EEOC is not saying that you have to hire a convicted embezzler as a bank cashier or some guy with a history of burglary convictions as your night watchman. But the criminal characteristics you are screening out should have a significant bearing on the requirements of the job itself. And, if you do use a background check, be very careful about what questions you ask, how you ask them, and what you do with the answers. An individualized assessment, applicant by applicant – not the use of some cultural stereotype - is what the civil rights laws require.
Do you have questions about the hiring process? RRB attorneys have advised and represented hundreds of job seekers and employers over the years, and we would be happy to counsel you, your company, or your friend or relative about any aspect of employment law, discrimination, or workplace rights and responsibilities. Give us a call at 703.299.3440 today.
--Ed Rosenthal
© RRBMDK 2012
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