Recent Federal Guidelines on Preventing Discrimination

It is nearly a given that employers will ask for an applicant’s criminal conviction record in the hiring process.  However, past guilt for a crime is not always a legitimate factor in the employment decision.  For example, a conviction for a decades-old traffic offense might well be irrelevant on choosing a person for a desk job.  Misuse of criminal records to deny a job could even lead to a discrimination suit, particularly if the applicant belongs to a minority racial group or happens to be from a particular country or culture.

Thus enter the U.S. Equal Employment Opportunity Commission’s (EEOC) extensive April 25, 2012 “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964” (Guidance).

The Guidance points out that discrimination may occur “when an employer treats criminal history information differently for different applicants or employees, based on their race or national origin (disparate treatment liability).”

It also cautions that an “employer’s neutral policy (e.g., excluding applicants from employment based on certain criminal conduct) may disproportionately impact some individuals protected under Title VII [the federal Civil Rights Act] and may violate the law if not job related and consistent with business necessity (disparate impact liability).” Thus, if for example those convicted of a particular crime happen to be disproportionately African American or Latino, then consistent use of such information for all applicants can have the unintended effect of excluding protected classes of workers from employment opportunities.

The EEOC was motivated to issue the Guidance as over the last twenty years, there has been a “significant increase in the number of Americans who have had contact with the criminal justice system” and thus a “major increase in the number of people with criminal records in the working-age population.”  According to the Guidance, in 1991 only 1.8% of the adult population had served prison time.  The figure rose to 2.7% by 2001 and 3.2% by 2007.  The U.S. Department of Justice has concluded that “if incarceration rates do not decrease, approximately 6.6% of all persons born in the U.S. will serve time in state or federal prison during their lifetimes.”

In the face of the resulting potential increase in discriminatory impact, the Guidance offers several “best practices,” including:

• Refrain from having a policy or practice that automatically disqualifies from employment individuals with any criminal record.
• Train managers and other decision makers about Title VII and its prohibition on employment discrimination.
• Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct.  Such procedures should include identifying essential job requirements and determining, based on all available evidence, the specific offenses that may demonstrate unfitness for performing such jobs.
• Document all consultations and research considered in developing your policies and practices, as well as the justification for each employment decision.
• During the hiring process, limit inquiries concerning an individual’s criminal background to those types of convictions that would be job-related.
• Keep information about applicants’ and employees’ criminal records confidential. Only use it for the purpose for which it was intended.

While the EEOC’s Guidance is not law, the EEOC and courts will likely defer to its recommendations when addressing discrimination charges arising from the handling of a person’s criminal record.  It is thus wise for employers to assess their current policies and practices with an experienced employment law attorney.