The Equal Employment Opportunity Commission (EEOC) recently updated its Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act of 1964. This update impacts employers that conduct criminal background checks.
While criminal background checks are still permitted and remain a valuable tool in hiring the best candidate, employers should consider the following best practices to help ensure compliance with the standards outlined in the updated Enforcement Guidance.
1. Understand the definition of disparate treatment.
Disparate treatment refers to intentional discrimination. For example, if there are two equally qualified job candidates with the same criminal records, an employer cannot base the hiring decision on the individual’s race, gender or national origin and so on.
2. Understand the definition of disparate impact.
Disparate impact refers to unintentional discrimination, where a policy does not appear to be discriminatory but the policy has an adverse impact on certain protected groups. The Enforcement Guidance states that national data shows disproportionate conviction rates in relation to race and national origin.
If a discrimination claim is made, an employer will have to prove that the employer’s background screening policy is justified based on business necessity and job relatedness and that there is no less restrictive means that would be suitable.
3. Do not merely rely on the fact of an arrest record.
The Enforcement Guidance states that an arrest record does not always warrant exclusion from a job opportunity. However, when making an employment decision, the Enforcement Guidance allows an employer to consider whether the conduct in question suggests “unfitness” for the position.
4. Link criminal conduct and hiring standards with specific jobs.
Employers may use conviction records to make an employment decision if they “effectively link” specific criminal conduct and its dangers with the job in question. Two ways to satisfy this standard under the Enforcement Guidance include:
- Formal validation under the Uniform Selections Guidelines.
- Using a “targeted screen.”
5. Use a “targeted screen”.
A hiring policy should not disqualify every individual with a criminal past, therefore, the Enforcement Guidance requires employers to screen for specific, job related criminal records within a defined period of time.
A “targeted screen” considers:
- The gravity of the offense (harm caused, elements of the crime, and classification)
- The tasks necessary to perform a job and the circumstances
- Time since conviction and/or completion of the sentence
- Nature of the job held or sought
6. Conduct an individualized assessment.
Such assessments allow individuals to explain the circumstances surrounding the conviction and any mitigating information to demonstrate that an exclusion based on criminal history may not apply. Individualized evidence can include:
- Circumstances or facts surrounding the conduct or offense.
- The number of convictions.
- An older age at the time of a conviction or release from prison.
- Evidence that an individual performed the same kind of work pre- or post-conviction without incidents relating to criminal conduct.
- Consistency and length of employment history before and after the conduct or offense. Rehabilitation efforts.
- Character or employment references regarding an individual’s fitness.
- The bonding of an individual under a federal, state or local bonding program.
7. Be familiar with federal laws and/or regulations regarding the employment of an individual with a criminal history.
Complying with federal laws is a valid defense to a charge of discrimination, but an employer’s exclusion policies should not exceed those of federal requirements.
8. Limit criminal record inquiries to job-related crimes.
While the temptation is to look for any criminal records, consider focusing only on those related to the applicant’s job history.
9. Create a written background screening policy.
“Narrowly tailored” policies and procedures for criminal background checks may include:
- A job description with essential requirements and the “actual circumstances under which jobs are performed.”
- Specific offenses that may prove unfitness for performing job functions.
- The duration of exclusions based on available evidence and individualized assessments.
- Justifications for the policies and procedures.
- Written records of research considered and consultations when creating the policies and procedures.
10. Train and educate hiring personnel, managers and decision makers.
Personnel involved in the hiring process should be educated about background screening policies and procedures, and how to implement them so they remain consistent with Title VII.
11. Keep criminal record information about applicants and employees confidential.
Use the records for the purposes intended. Background screening records should be maintained in a confidential location with access limited to those within the employer that need to know the information.
By understanding these best practices, employers will be on their way to continuing to effectively use criminal background checks to help ensure a safe workplace and obtain better quality hires, while being able to better meet the Enforcement Guidance. In addition to these best practices, employers should consult with their legal counsel to determine how the Enforcement Guidance impacts their background screening programs.
Recorded Webinar: Understanding the Nuances of the Updated EEOC Enforcement Guidance
Littler Mendelson, the premier U.S. employment law firm, shares insights on the updated Enforcement Guidance.
Insights that will help you evaluate potential changes to your background screening policies and procedures.