EEOC Guidance
Using Criminal Records in Employment Decisions
Ground Rules
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FYI
•The
•It’s
first 9 slides are “Background”.
important to know how we got here because the new
Guidance builds on previous EEOC rules.
Background
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The Fair Credit Reporting Act (FCRA) is the primary
“rule book” for background checks - enforced by the
FTC.
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The Equal Employment Opportunity Commission
(EEOC) is involved only when background checks and
Title VII of The Civil Rights Act of 1964 intersect i.e.
discrimination against protected classes (race, color,
sex, religion or national origin).
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This involvement manifests itself primarily in the use of
“non-conviction data” aka “arrest records” in
background check reports (1990).
More background
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The original1990 EEOC opinion is based on a 1987
DOJ report that stated minorities are arrested
“disproportionately” more often that majorities. Since a
person is presumed to be innocent, an arrest does not
constitute “guilt” and therefore unfair to minorities.
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This effectively bars the use and receipt of arrest
records in background checks even though the FCRA
says arrest records may be used unless the information
is older than seven years.
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Until this new Guidance, that was
It’s About “behavior”
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A “purist” will tell you that arrest records may be used if
the underlying behavior poses an unreasonable risk to
the employer.
✴An
applicant is arrested repeatedly for domestic
violence but never convicted; a review of the cases
reveals a pattern of violent behavior that poses an
unreasonable risk to the workplace.
✴The
EEOC says you have to review the evidence
yourself. This is a very high standard for the
employer to meet.
The heart of the matter
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The EEOC enforces Title VII.
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A person with a criminal record is not a “protected
class” under Title VII.
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“Therefore, whether a covered employer’s reliance on a
criminal record to deny employment violates Title VII
depends on whether a claim of employment
discrimination is based on race, color, religion, sex or
national origin.”
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Final decision will be based on finding of “Disparate
Impact” and “Disparate Treatment”
Disparate impact & treatment
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Disparate Treatment occurs when a protected applicant
can demonstrate he/she was treated “differently”by an
employer
✴ Example:
Two applicants with similar backgrounds including
criminal histories aren’t given equal consideration because of
“racial or ethnic animosity”.
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Disparate Impact occurs when a protected applicant
can demonstrate that policies/practices have the effect
of disproportionately screening out protected groups.
✴ Example:
An employer historically reserves certain jobs or
positions in their organization for one protected class vs. another.
practical
implications
• After the plaintiff establishes disparate impact or
treatment, Title VII shifts the burden of production and
persuasion to the employer to “demonstrate that the
challenged practice is job related and consistent with
business necessity.”
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Even if an employer successfully demonstrates that its
policies are job related, a plaintiff may prevail by
demonstrating that there is a less discriminatory
“alternative employment practice” that serves the
employer’s goals. (Brown v Fort Worth Bank & Trust 1988)
Exceptions
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Notes
✴Compliance
with Federal laws that conflict with Title
VII are a defense to the charge of discrimination.
✴State
and local laws/regulations are preempted by
Title VII if they require or permit an unlawful
employment practice.
The preceding rule have been in
place since 1990.
So
What
has
changed?
• It used to be about arrest records. It now includes
convictions.
• The new Guidance calls out a specific behavior it
believes contributes to discrimination under Title VII:
✴“Blanket” disqualification policies that exclude anyone
with a criminal record (any criminal record).
✴The use of general questions related to criminal
histories on applications i.e. “Have you ever been
convicted...”
Highlights
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Again, “National data supports a finding that criminal
record exclusions have a disparate impact based on
race and national origin.”
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Two circumstances where EEOC believes their use are
acceptable:
1. The employer validates the criminal conduct
exclusion using data that adheres to the “Uniform
Guidelines on Employee Selection Procedures”
(link on our website) - Note: This is extremely
difficult.
Exceptions
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 (“Green Rules” from
Green v Missouri Pacific Railroad).
✴Additionally, the employer then provides the
applicant an opportunity for an individualized
assessment (interview)... to determine if the policy
as applied is job related and consistent with
business necessity.”
What’s a company to do?
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From “EEOC Best Practices”
✴
Eliminate policies/practices that exclude people
based on any criminal record.
Document that you’ve trained your managers about
Title VII
✴
What’s a company to do?
✴Develop
a written policy/procedure for screening
applicants for criminal records. Include:
★
Essential job requirements of each position
★
Specific offenses that demonstrate “unfitness”
★
Duration of exclusions aka “point of redemption”.
What’s a company to do?
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Include an individual assessment or review of each
marginal case.
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Document any research or consultations used to craft
the new policy.
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When asking questions about criminal records, limit
inquiries to records that are job relevant.
how do i do this?
1. Make a list of all job classifications.
2. Determine what types/levels of crimes will disqualify
an applicant i.e. violence, theft sex, drugs, etc..
3. Determine what time limit(s) are relevant for each
type. Note: Some crimes can be “forever”.
4. Conduct assessments for marginal applicants.
5. Provide/document training for your hiring managers.
It might Look like this
Job
Class
Violence
Drugs
Theft
Sex
Driving
Office
Yes
Yes
Yes
Yes
No
Field
Yes
Yes
Yes
Yes
Yes
Superviso
r
Yes
Yes
Yes
Yes
No
Manager
Yes
Yes
Yes
Yes
Yes
Disqualifying convictions
Offense
Violence
Drugs
Theft
Misdemeanors
Within Past 5 Years
Assault, Domestic Violence, Battery
Terroristic Threats
Possession of a Deadly Weapon
Aggravated Assault
Murder/Manslaughter
2 or more Possession of Mariijuana
Possession of Controlled Substance Sched I,
II, III
Possession with Intent to Distribute
Theft by Check $50-$500
Theft $50-$500
Grand Theft Auto
Theft $500 - $50,000
Sex
Driving
Felonies Within Past 7 Years
N/A
3 or more tickets
DWI - 1st or 2nd
Aggravated Sexual Assault
Registered Sex Offender (Previous)
Registered Sex Offender (Current) - (No
Limit)
DWI 3rd or More
How to implement
Offense
Company
Policy/Practice
Felony conviction within past
seven years - Aggravated Assault
Disqualification
Conviction - Possession of
Marijuana six years ago.
DWI (1st) six years ago
Miscellaneous
Conduct Assessment; Review
and confirm Applicant’s version of
events
If a driver, conduct assessment
and confirm facts; if non-driver,
not job relevant; should be hired
Consider adding consequences to 2nd DWI to
employment agreement
This isn’t one size fits all
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Each industry will have its “hot buttons”.
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Trade associations may create organized response for
their industry.
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Consult your legal counsel
changing the question
Option 1
Change the question to address convictions or pending
charges related to the job i.e. theft, violence, drugs, etc.
Option 2
Remove the question from your application and present
it later in the process; prepare a brief questionnaire with
more detailed questions
Let’s Review
1
Identify Your Positions By Levels
2
Determine Your Risk(s) by Job i.e Theft,
Violence, etc.
3
Identify Disqualifying Offenses with Time Limits
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Put a Review Process in Place and Document
Review (cont)
5
Eliminate all policy language that is “absolute”
6
Reformat the “Question” about criminal records;
the EEOC recommends moving it deeper into
the process
don’t procrastinate
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There are currently 112 open cases regarding the use
of criminal records with the EEOC.
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Plaintiff Attorneys will “smell blood” in the water.
Watch for updates on our Client Exchange.
Questions and General Discussion?