On April 25th, the EEOC issued a 52 page document entitled Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under the Civil Rights Act of 1964. (I guess a long name justifies a long document??)
The EEOC is concerned about the effect of background checks on persons of particular races or national origin. For example, while only one in every 87 white males ages 18 to 64 is incarcerated, the number for similarly-aged Hispanic males is one in 36, for African-American men it is one in 12. Thus, if an employer rejects applicants due to criminal convictions, more Hispanics and more African-Americans will be unable to secure employment.
According to the EEOC, an employer's practice, such as conducting background checks, may constitute a violation of Title VII if the practice has a disparate impact on a protected class unless the practice is job-related and consistent with business necessity. An employer will successfully demonstrate job-relationship and business necessity in two circumstances:
(1) The employer validates the criminal conduct exclusion for the position in light of the Uniform Guidelines on Employee Selection Procedures (if there is data or analysis about criminal conduct as related to subsequent work performance or behaviors); or
(2) The employer develops a targeted screen considering at least the nature of the crime, the time elapsed, and the nature of the job.
I am a firm believer in background checks. The best indicator of future performance is past performance. However, the EEOC is telling me and employers that this adage may be unlawful unless we make an individualized assessment whether the results of a background check, and decision to reject a candidate based on those results, is individualized. In other words, making a blanket decision not to hire a candidate based on his/her criminal background may be unlawful unless the employer can show that the nature of the crime, its proximity to the date of the application, and the nature of the job justifies rejecting the candidate.
Employers will need to better understand the EEOC position, and the impact on their background screening policies. We will hold a training session to help employers meet their legal obligations and avoid an EEOC enforcement action. If you are not on our mailing list for trainings, please contact firstname.lastname@example.org and ask to be put on the list.
The employer’s policy then provides an opportunity for an individualized assessment for those people identified by the screen, to determine if the policy as applied is job related and consistent with business necessity. (Although Title VII does not require individualized assessment in all circumstances, the use of a screen that does not include individualized assessment is more likely to violate Title VII.