The Equal Employment Opportunity Commission (EEOC) recently issued “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964,” an updated guidance regarding employer consideration of arrest and conviction records when making employment decisions.

The EEOC cites increasing and disproportionate incarceration rates for African American and Hispanic men as part of its justification for the new guidance. The guidance consolidates and supersedes EEOC policy statements from 1987 and 1990, and serves as a resource to employers considering employment decisions that would affect applicants or employees with criminal conduct records.

The guidance cautions that employers may violate Title VII through:

• Disparate treatment of people with comparable criminal histories
• Disparate impact on individuals of a certain race, national origin or other protected class caused by the application of facially neutral criminal history policies, if the employer cannot show a business necessity for a job-related exclusion

In other words, while having a criminal record is not a protected status under Title VII, a claimant may be able to prove that consideration of his or her criminal record resulted in either disparate treatment or disparate impact based on that individual's race or other protected status.

Highlighting the distinction between arrest and conviction records, the EEOC finds the use of arrest records in making employment decisions is almost always impermissible. Because an arrest is not always indicative of criminal conduct, a job exclusion based solely on an arrest record is not job related and consistent with business necessity. An employer may, however, “make an employment decision based on the conduct underlying the arrest if the conduct makes the individual unfit for the position in question.”

Convictions, on the other hand, “usually serve as sufficient evidence that a person engaged in particular conduct.” Regardless, the EEOC recommends that employers “not ask about convictions on job applications and that, if and when they make such inquiries, the inquiries be limited to convictions for which exclusion would be job related for the position in question and consistent with business necessity.”

Addressing disparate treatment claims, the guidance notes that an employer may incur liability if evidence shows that it rejected an applicant of one race based on that applicant's criminal record, but hired a similarly situated applicant of a different race with the same criminal record.

Regarding disparate impact claims, employers using seemingly neutral criminal screening policies in employee selection must be able to prove that such policies are job-related and consistent with business necessity. Such a showing requires a demonstration that the policy effectively links specific criminal conduct and its dangers to the risks inherent to the position at issue.

The guidance provides two examples that should normally meet this threshold:

1. The employer validates the criminal conduct screen for the position in question per the Uniform Guidelines on Employee Selection Procedures standards (if data about criminal conduct as related to subsequent work performance is available and such validation is possible).
2. The employer develops a targeted screen considering at least the nature of the crime, the time elapsed since the offense or completion of the sentence, and the nature of the job, and then provides an opportunity for an individualized assessment for people excluded by the screen to determine whether the policy as applied is job related and consistent with business necessity.

The guidance notes, however, the essential ineffectiveness of the validation approach, as the type of social science studies that would be needed to provide a framework to validate an employment screen in that context are presently “rare.”

Consequently, the second approach will likely be the employer's focus. According to the guidance, the individualized assessment associated with that approach should include notice to the individual that he has been screened out because of a conviction, a chance for the individual to explain why the exclusion should not apply to him and the employer's consideration of the individual's explanation.

Employers are cautioned that even if an employer demonstrates business necessity, the guidance declares that a plaintiff might still prevail on a disparate impact claim if an equally effective but less discriminatory alternative employment practice can be shown.

Employers should also be aware that, in instances where state and local laws automatically exclude employment based on certain types of convictions, the guidance expressly provides that such mandates will not be an automatic defense if the EEOC believes a company is violating Title VII.

As this guidance represents the way the EEOC will investigate and enforce Title VII relating to the use of criminal records in employment decisions, employers are encouraged to review their policies as they relate to this issue and determine whether revisions may be necessary.