October 23, 2012
With high unemployment rates, employers are receiving more applications than ever before in an attempt to fill what limited job openings they have with the most qualified candidates. When reviewing applications, employers should be aware of the new federal protections in place for criminal ex-offenders.
On April 25, 2012, the US Equal Employment Opportunity Commission (EEOC) issued new enforcement guidance on the consideration of arrest and conviction records in employment decisions under Title VII of the Civil Rights Act of 1964. The EEOC enforces Title VII, which prohibits employment discrimination based on race, religion, sex, or national origin, for employers with 15 or more employees. The new guidance supersedes all previous guidance in this area and was effective upon issuance.
Although having a criminal record is not specifically listed as a protected class under Title VII, the EEOC believes the use of criminal records in the hiring process may have a disparate impact on a protected class because of their race. For example, according to the EEOC’s guidance, African American and Hispanic men are arrested at a rate that is 2-3 times the proportion of the general population and, therefore the use of criminal records in the hiring process may have a disparate impact.
So this begs the question: Should employers stop conducting background screens and be forced to hire ex-offenders under the new EEOC guidance?
Employers should, however, review their current screening policies to ensure compliance with the new guidance and consider following the EEOC’s suggested best practices.
Most employers would agree there is a job for everyone, but not everyone is appropriate for every job. How an employer distinguishes which candidates qualify for a particular job will be critical in complying with the new rules. When reviewing applicants who may have negative information on their background screening report, employers should conduct some sort of assessment to determine whether the circumstances surrounding the applicant’s conviction merit an exception.
Factors to consider for assessing criminal records under the new guidance are as follows:
- Facts and circumstances surrounding the offense or conduct
- Number of offenses for which the individual was convicted
- Time that has passed since time of conviction or release from prison
- Rehabilitation efforts (additional schooling or training)
- Length and consistency of employment history before and after the offense or conduct
- Employment or character references and other information regarding fitness for the particular position
- Whether the individual is bonded under federal, state or local bonding program
- Evidence that the individual performed the same type of work post-conviction with no known incidents of criminal conduct
It is important to note the EEOC’s guidance does not have the force of law and may be vulnerable to court challenges as the commissioners did not allow for public comment on new guidance. However, many courts routinely rely on EEOC policy statements and guidance. Without taking the guidance into consideration, and reviewing their current policies, employers may find themselves in court defending a disparate impact claim.
The most dramatic effect will be for employers who are mandated to conduct criminal checks under state and local law. The EEOC clearly states that state and local mandates do not pre-empt Title VII. For example, Rhode Island has several laws mandating criminal records checks on facilities working with the vulnerable populations, such as childcare facilities, nursing homes, hospitals, and law enforcement agencies. These state mandated checks must now be balanced with the EEOC’s requirements of individualized assessments. The owner of an assisted living facility who is required by state law to conduct background checks has no assurance that its adherence to state law will insulate him or her from an EEOC investigation.
Although the guidance seems a bit overwhelming and employers may be tempted to ignore it as overly burdensome in some respects, it should be noted that the EEOC is aggressively looking to enforce this guidance. Their recently submitted strategic plan calls for a focus on strategic enforcement much more than education of employers related to EEOC guidance.
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