June 2012
In April, the EEOC announced its long-awaited Enforcement Guidance on the Consideration of Arrests and Conviction Records in Employment Decisions under Title VII. See http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm.
These guidelines seek to limit the use of arrest and conviction records for employment purposes by suggesting that employers who use a criminal background check in their hiring process could face discrimination claims. In short, the EEOC believes that the use of background checks can limit job opportunities for those minority groups that have higher arrest and conviction rates. Thus, the EEOC recommends that employers not ask about convictions on job applications.
The guidelines suggest that, to survive a “disparate” impact claim, employers must develop a targeted screen that considers the nature of the crime, the time elapsed, the nature of the job, the length and consistency of employment history before and after the offense, the number of offenses for which the individual was convicted, and other such factors. The EEOC encourages employers to develop an individualized assessment for all applicants.
While these guidelines may place a greater burden on employers, they also provide a useful roadmap for avoiding liability. An employer who takes arrest and conviction records into account in the hiring process must develop a narrowly tailored policy specific to its business. While it may seem obvious that employers want to protect their employees and property by excluding thieves, rapists, and other felons from their workforce, that rationale alone may no longer be sufficient.
The guidelines are required reading for any employer that takes arrest or conviction records into account in hiring decisions. For help in developing a plan to address these guidelines, contact the employment team at Dunn Carney.
