Wednesday, March 5, 2014

Consideration of Criminal Records in the Hiring Process

          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.[1]  The concern about criminal background checks is based on data showing that arrest and incarceration rates are much higher for African Americans and Latinos.[2]  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. [3]

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.[4]  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.

[1] EEOC Enforcement Guidance: Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, Issued April 25, 2012.

[2] See Pew Ctr. on the States, Collateral Costs: Incarceration’s Effect on Economic Mobility 6 (2010),“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.
[3] 42 U.S.C. §§ 2000e-2(k)(1)(A)(i), (ii), C.

[4] Va. Code Ann. § 19.2-392.4