Criminal
background checks have always been somewhat of a controversial tool for
reaching hiring decisions. The federal law that prohibits job
discrimination, Title VII of the Civil Rights Act of 1964, protects applicants
and employees from discrimination in every aspect of employment, including
screening practices and hiring. Title VII protects employees and applicants
from policies or practices that disproportionately screen out members of a
particular race, ethnicity, or other protected class. Title VII does not bar criminal background checks, but it
does govern how such information may be used by an employer.
The
Equal Employment Opportunity Commission (EEOC) is the federal agency that
enforces Title VII. In April 2012, the EEOC issued updated guidance
(Guidance) for employers, explaining how they can screen out applicants who
might be dangerous or pose a safety risk without engaging in discrimination. The concern about criminal background checks
is based on data showing that arrest and incarceration rates are much higher
for African Americans and Latinos. The EEOC makes clear that employers will violate Title VII if they intentionally
discriminate among individuals with similar criminal histories or if their
policies have a disproportionate adverse impact based on race, national origin
or some other protected status and employers are unable to demonstrate
“business necessity” for utilizing an applicant’s criminal history in making a
hiring decision.
The
EEOC explains that in
deciding whether a particular offense should disqualify an applicant or
employee, employers must consider:
·
the nature and gravity
of the criminal offense or conduct
·
how much time has
passed since the offense or sentence, and
·
the nature of the job
(including where it is performed, how much supervision and interaction with
others the employee will have, and so on).
According
to the EEOC, employers should give applicants with a record an opportunity to
explain the circumstances and provide mitigating information showing that the
employee should not be excluded based on the offense.
Protected
persons who are denied employment because of a criminal background check may
have viable Title VII claims where:
– Denial
of employment was based solely on an arrest;
– The
employer used a blanket exclusion that screened out all persons who have ever
been convicted of a crime;
– The
exclusion did not take into account the nature of the crime, the amount of time
elapsed since it occurred, and the nature of the job;
– The
employer did not provide an opportunity for the excluded person to explain a
criminal matter;
– The
employer has a reputation for excluding persons with criminal backgrounds; or
– The
employer has expressed stereotypical views concerning the criminality of
certain racial or ethnic groups.
The
EEOC identified the following "Best Practices" that employers can
take when considering arrest and conviction records in making employment
decisions:
–
Develop written policies and procedures for screening applicants and employees
regarding criminal conduct;
– Train
managers, hiring officials, and decision makers regarding implementation of the
policies and procedures;
– Limit
inquiries regarding criminal records to those that are "job related for
the position in question and consistent with business necessity"; and
– Keep
information regarding applicant and employee criminal records confidential.
Of note is that Virginia law protects
applicants with criminal records that have been expunged. An employer may not ask applicants to
disclose expunged criminal charges, whether on an application form, in an
interview, or in another forum. An
applicant need not refer to any expunged charges if asked about his or her
criminal record.
EEOC’s Guidance is not binding law,
but it sets the standard that the EEOC will use when evaluating discrimination
complaints based on the use of criminal history information in employment
decision. However, courts may use it in
their analysis of these issues and employers need to act carefully. Most
hiring practices almost always benefit from review by an attorney familiar with
these laws and recent decisions. You can contact one of RRBMDK’s employment
attorneys if you have any
questions about the recent EEOC Guidance or other aspects of your hiring
practices.
See Pew Ctr. on the States, Collateral Costs: Incarceration’s
Effect on Economic Mobility 6 (2010), http://www.pewcenteronthestates.org/uploadedFiles/Collateral_Costs.pdf?n=8653(“Simply stated,
incarceration in America is concentrated among African American men. While 1 in
every 87 white males ages 18 to 64 is incarcerated and the number for
similarly-aged Hispanic males is 1 in 36, for black men it is 1 in 12.”).
Incarceration rates are even starker for 20-to-34-year-old men without a high
school diploma or GED: 1 in 8 White males in this demographic group is
incarcerated, compared to 1 in 14 Hispanic males, and 1 in 3 Black males. Pew Ctr. on the States, supra, at 8, Figure 2.
42 U.S.C. §§
2000e-2(k)(1)(A)(i), (ii), C.
Va. Code Ann. § 19.2-392.4
