Many employers conduct criminal background checks for applicants or new hires in order to complete due diligence. In fact, the National Consumer Law Center reports that a whopping 93 percent of employers run criminal background checks on some job candidates, and 73 percent of employers conduct such checks on all potential new hires.
However, as part of its continuing effort to insert itself into the everyday lives of every workplace in the country, the Equal Employment Opportunity Commission has issued new guidelines that aim to curtail the use of arrest and conviction records for employment purposes. Now, every employer that chooses to run criminal background checks is at risk of facing a discrimination charge or lawsuit.
First, note that much of this “new” guidance, issued April 24, isn’t really new at all. It emphasizes past statements in hopes of convincing courts to go further in their treatment of misbehaving employers. The EEOC, in fact, has targeted employers that misused criminal background checks since at least 1969, and issued policy statements on this issue in 1987 and 1990.
What the EEOC has made clear for more than 20 years is that it believes it is dangerous for an employer to automatically bar an applicant from consideration simply because of a past arrest or conviction. The agency points to sociological statistics that show that people of certain races and national origins are disproportionately arrested and convicted of crimes.
Therefore, the agency has said, if an employer issues a blanket prohibition on hiring for anyone with a criminal background, without further regard to the specific circumstances involved, that employer may well be in violation of Title VII (the country’s most widely-applied anti-discrimination statute).
And so although Title VII doesn’t regulate the use of criminal background checks (the Fair Credit Reporting Act does), the law could be used if it were shown that an employer’s policies were unfairly screening out African-Americans, Hispanics, or some other ethnic group.
So, why did the EEOC issue the new guidance? It says that the main reason is because technology has sufficiently advanced in the past 20 years so that criminal records are widely accessible by employers.
However, observant employers also know that the EEOC has displayed a very aggressive agenda over the last few years, emboldened by a worker-friendly administration and seemingly motivated to roll out new hurdles and roadblocks on a monthly basis. The EEOC has also announced that it is committed to increasing the number of systemic discrimination cases (class actions) it will bring over the next five years, and there is no doubt that this new guidance will result in many new claims against employers.
According to the guidance, the key touchstone in determining whether criminal background checks are compliant with the law is whether the use of acquired information is “job-related.” In other words, the EEOC does not want employers to reject completely any applicant who has a conviction on his record. Instead, the agency is advising employers that they must ensure that the conviction is related to the field of work in which the candidate is seeking employment, or risk running afoul of Title VII.
And the guidance states that if an employer is accused of violating these guidelines, the employer has the burden of proving that it followed the guidelines and did not discriminate against minority applicants.
The good news is that the updated guidance provides employers a road map for avoiding liability under Title VII based on a criminal background check policy. The bad news is that some of the suggestions are burdensome, difficult to implement and not crystal clear. This is not an exact science.
Employers first should look into validating their criminal background check policy. To do so, employers will need to demonstrate that specific criminal history is related to subsequent job performance or behavior, and the EEOC suggests following the Uniform Guidelines on Employee Selection – a set of guidelines available online.
Even though the EEOC lists this type of validation as a defense to liability, note that validation studies across all boundaries are rare, and such studies may be difficult, if not impossible, to procure for some businesses.
Next, an employer should determine whether its policy is overly broad, or narrowly tailored to consider all appropriate factors: the nature and gravity of the criminal offense or conduct; the time that has passed since the offense or conduct; and the nature of the job held or sought. All policies should allow for a unique determination in every circumstance.
A hiring manager or committee should look for evidence that the individual performed the same type of work, post conviction, with the same or a different employer, with no known incidents of criminal conduct; rehabilitation efforts (such as education or training); and employment or character references and other information regarding fitness for the particular position. Of course, some decisions may be more difficult than others, and employers can always expose themselves to liability when different decisions are made about different applicants.
Finally, employers should be ready to prove that its policy is supported by research and evidence. For example, an employer that deals with financial information may decide to exclude applicants with theft convictions over the past 10 years.
The EEOC, and the courts, may no longer accept the seemingly obvious rationalization that applicants with theft convictions are more likely to steal. Instead, employers should be prepared to defend their policy with research, evidence or statistics that demonstrate an increased likelihood that such applicants are more likely to steal than others are.
Rich Meneghello, managing partner of the Portland office of Fisher & Phillips LLP, is dedicated to representing the interests of management. Contact him at 503-205-8044 or firstname.lastname@example.org, or follow him on Twitter – @pdxlaborlawyer.