This is not the EEOC’s first foray into this area and so some of the materials are not new. For example, the EEOC differentiates between arrest records and criminal convictions. An arrest alone does not establish that criminal conduct occurred and excluding employees based on arrest records is impermissible. However, an employer can make an employment decision based on the behavior giving rise to the arrest. Similarly, the EEOC has taken the position that convictions are not necessarily reliable evidence that the underlying criminal conduct occurred.
The EEOC also informs employers that they can be held liable under two theories of discrimination. Under a disparate impact theory, the employer can be held liable under the disparate treatment theory if the it treats one person differently than other persons. An employer can be held liable under a disparate impact theory if its background check policy adversely affects a particular protected group of people.
After reviewing the Guidance, we have developed a flow chart to help employers understand how to understand the EEOC’s position on using criminal records for employment decisions. We think this flow chart will assist you in developing processes to address the issues raised by the EEOC Guidance.
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We recommend that every employer conduct background investigations. An employer can make a better hiring decision with more information, particularly information that an applicant does not necessarily volunteer. This information could be a criminal background or poor reviews at a prior job, inaccurate educational achievements, or manufactured or exaggerated jobs.
However, a background check can be subject to challenges of unlawful discrimination. An applicant can claim disparate impact – that you treated him/her differently than other applicants. Perhaps the employer hired one applicant with a criminal record, but rejected another candidate with a similar record. This type of claim will arise most frequently when the employer has not established a policy with respect to what criminal information might exclude a candidate.
An applicant could also claim that the company’s policy adversely affects persons in his/her protected class. The applicant might allege that by excluding persons with felonies within the past seven years persons of his/her ethnicity are excluded most frequently from being hired.
You can see that the employer is darned if it does (have a policy) and darned if it doesn’t (have a policy). We recommend the employer consider implementing a policy, but making it sufficiently narrow that it does not adversely affect persons of a particular protected classification, or can be justified based on the job.
If an applicant makes a challenge, the employer must articulate a justification for its actions. This means the employer must show job-relationship and a business necessity for considering the criminal record. This is where the EEOC Guidance focuses.
An employer can justify its behavior in one of two ways. It can “validate” its criminal conduct screen for the job per the Uniform Guidelines on Selection Procedures provided data about the criminal conduct as related to subsequent work performance is available and validation is possible. This is not a viable option in most cases.
The employer can also justify its decision by developing a targeted screen that considers three factors: The nature of the job; the nature of the crime; and the proximity in time between the crime and the application. These are the Green factors as articulated in Green v. Missouri Pacific Railroad, 549 F.2d 1158 (8th Cir. 1977). The screen should also include procedural safeguards. For example, the background check should be done competently and accurately. Second, the applicant should be given the opportunity to respond and explain.
The employer should exercise due consideration in developing the targeted screen. It should document its analysis. For example, if hiring for a medical office position where the employee will have access to patient data, including data that could be used in identity theft, the employer can probably articulate a screen that excludes persons who have been involved in theft crimes or fraudulent activities.
The employer will probably need to rely on its background check provider to allow the person to conduct an accurate check, and to provide the applicant an opportunity to respond to the convictions discovered. The information will need to be relayed to the employer so that it can consider the applicant’s response and explanation.
Developing the target screen and by providing applicants an opportunity to explain the circumstances surrounding any criminal records is the best defense to challenges of unlawful discrimination occurring during the background check process.