In April, the Equal Employment Opportunity Commission (EEOC) issued a revised Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Right Act of 1964 (Guidance). Under the Guidance, an employer may commit disparate impact discrimination against a protected minority classification if the evidence shows that its facially neutral arrest and conviction policy or practice disproportionately denies employment to a protected minority group and the employer cannot demonstrate that the policy or practice is relevant to the position in question and consistent with business necessity.

The new guidance replaces and updates the EEOC's 1987 policy. According to the agency, statistical evidence demonstrates that African Americans and Hispanics are arrested and convicted of crimes at a much higher rate than the general population, and that facially neutral arrest and conviction policies may have a discriminatory disparate impact on their being selected for employment. Under the new guidelines, an employer may defend against a claim of disparate impact discrimination if it shows that the disparate impact is job-related and consistent with the needs of the business. To make this defense, employers must consider three factors:

• The nature and the gravity of the offense or conduct
• The time that has elapsed since the offense and/or the completion of the sentence
• The nature of the job held or sought (referred to as the “Green factors”)

The Guidance encourages the use of a targeted screen evaluating these three factors, which provides for an individualized assessment of the applicant, to determine if the policy as applied is business-related and consistent with business necessity.

The Guidance makes clear that an arrest is not a conviction, and a refusal to hire based solely on an arrest is not job-related or consistent with business necessity. However, conduct underlying the arrest may make the individual unfit for the position in question. The EEOC notes that certain federal regulations prohibit the employment of persons convicted of certain crimes, and that Title VII does not preempt these federal regulations. However, where state laws or regulations prohibit the employment of persons convicted of certain crimes, the employer must still demonstrate the policy is business-related and consistent with business necessity.

The following are suggested best practices for complying with the EEOC's guidance and minimizing the risks associated with a finding of disparate impact discrimination:

1. Assess your current policy/ practice. Eliminate any policies or practices that exclude applicants for employment based upon an arrest or criminal record.

2. Develop a written policy. Develop and implement a written, narrowly tailored policy and procedures for screening applicants and employees for criminal conduct. A “narrowly tailored policy” identifies criminal conduct with a demonstrably tight nexus to performance or fitness for the position in question. Draft written job descriptions that identify the essential job functions and requirements and how the jobs are performed. Determine the specific offenses that may demonstrate unfitness for performing such jobs.

3. Include an individualized assessment. The targeted screening policy should provide the person in question with notice of an individualized assessment and a link between fitness for the job and the crime. The individualized assessment should provide the applicant with the chance to explain the circumstances surrounding the crime, and his fitness for employment.

The Guidance notes that the individualized assessment should explore the following areas:

• The facts surrounding the offense
• The number of offenses and convictions
• The age and recidivism rate at the time of conviction
• Evidence that the individual was employed in the same or similar position, after conviction, with no further convictions
• The length and history of employment before and after the conviction
• Rehabilitation efforts such as education and training
• Employment and character references regarding fitness for the position
• Whether the person is bonded under a federal, state or local bonding program

4. Declare the business purpose. The policy should state its purpose and business justification. Have the policy signed by the CEO or chief human resources officer.

5. Provide education and training. Train managers, hiring officials and decision makers on how to implement the policy and procedures consistent with Title VII and the Guidance. Keep records of this training.

When asking about criminal convictions, limit questions to convictions relevant to the job in question and make sure all questions are consistent with business necessity.

6. Maintain confidentiality.Keep information about the interview and criminal records confidential and limited to management individuals who have a need to know.

Reviewing your policies and practices in this area now will help to ensure compliance and minimize the risk of running afoul of the EEOC's guidance.