On April 25, 2012, the EEOC issued a Guidance document addressing employers’ consideration of arrest and conviction records in employment decisions. See http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm. While purporting not to change the Commission’s longstanding policy approach to this issue – and while it is not binding precedent on the courts – the Guidance offers employers clarification and new analysis on several issues, including:
- An employer’s use of criminal history information may violate Title VII in two different ways: (1) under a disparate treatment theory, where the employer treats persons with similar criminal histories differently based on a protected characteristic, or stereotypes certain persons based on a characteristic; and (2) under a disparate impact theory, where a policy that excludes persons has a disparate impact on a protected group and the employer is unable to establish that the exclusions based on criminal history are job-related and consistent with business necessity.
- If it causes a disparate impact, the EEOC will deem an employer’s policy of excluding everyone who has a criminal record will not be job-related and consistent with business necessity and will therefore be deemed to be unlawful, unless the policy is required by federal law.
- Employers may “consistently” meet the job-related and consistent with business necessity standard in the following two circumstances: (1) the criminal conduct exclusion has been validated for the position in question under the Uniform Guidelines on Employee Selection Procedures; or (2) the employer develops a “targeted screen” that considers at least the nature of the crime, the time elapsed, and the nature of the job, and then assesses potential exclusions on an individualized basis with reference to facts and/or research.
- Exclusion based on a person’s arrest, in and of itself, will not meet the job-related and consistent with business necessity standard. However, the conduct underlying the arrest can be considered.
- The Guidance contains a list of “best practices” for employers to follow when making employment decisions based on criminal conduct.