EEOC Enforcement Guidelines - Arrest and Convictions

During the application or hiring process many employers include criminal background checks on their applicants.   There has always been a bit of confusion and controversy over what information can or can’t be used in the decision making process.  On April 25^th the EEOC released their new Enforcement Guidance (Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.).

Is there a legal risk for employers to misuse information obtained during a background check?  Yes.  January 11, 2012 the EEOC announced that Pepsi paid $3.1 million to settle an EEOC race-bias charge.  The EEOC found that the criminal background check policy used by Pepsi discriminated against more than 300 African American applicants under Title VII of the Civil Rights Act of 1964.  The policy precluded applicants from employment if they had an arrest pending prosecution, even if they had never been convicted of any offense.  (Statistics indicate that African Americans and Hispanics are arrested in numbers, and incarcerated at rates, disproportionate to their representation in the general population.)

The new EEOC Guidance discusses the difference between arrest and conviction records.   Per the EEOC:

1. The fact of an arrest does not establish that criminal conduct has occurred, and an exclusion based on an arrest, in itself, is not job related and consistent with business necessity.  However, an employer may make an employment decision based on the conduct underlying an arrest if the conduct makes the individual unfit for the position in question. *Remember, the fact of an arrest does not establish that criminal conduct has occurred.  Many arrests do not result in criminal charges, or the charges are dismissed.  An individual is presumed innocent unless proven guilty.*
2. In contrast, a conviction record will usually serve as sufficient evidence that a person engaged in particular conduct.  In certain circumstances, however, there may be reasons for an employer not to rely on the conviction record alone when making an employment decision.

Previously (Felony Convictions and the Hiring Process, November 21, 2011) I touched on the three Green Factors* that an employer may take into consideration during the hiring process: 

• The nature and gravity of the offense or conduct;
• The time that has passed since the offense, conduct and/or completion of the sentence; and,
• The nature of the job held or sought.

Bear in mind there are some industries in which employers are subject to federal statutory and/or regulatory requirements that prohibit individuals with certain criminal records from holding particular positions or engaging in certain occupations.

In closing, I’m going to quote the EEOC; “When asking questions about criminal records, limit inquiries to records for which exclusion would be job related for the position in question and consistent with business necessity.  Keep information about applicants’ and employees’ criminal records confidential. Only use it for the purpose for which it was intended.”

*Green v. Missouri Pacific Railroad, 549 F. 2d 1158 (8^th Cir. 1977)

The link:  http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm