An Update on Employer Use of Criminal Background Checks from the EEOC
By Barran Liebman LLP
Oregon law firm
The Equal Employment Opportunity Commission (EEOC) has now modernized its stance on the use of criminal background checks by employers, a topic it had not formally weighed in on in over 20 years. The agency has issued a dense, 52-page enforcement guidance on employer use of arrest and conviction records in making employment decisions. There is no outright ban on criminal background checks, but the guidance makes the process more burdensome and tedious for employers who want to use this information to screen applicants or make other employment decisions.
Although the guidance reminds employers that different treatment of applicants and employees because of their criminal background history may be disparate treatment, much of the guidance discusses the possibility that using criminal records may lead to disparate impact discrimination. That is of particular concern since, according to the agency, national incarceration statistics “support a finding that criminal record exclusions have a disparate impact based on race and national origin.” The employer, then, essentially has the burden to show that its practices do not cause a disparate impact. This cannot be done merely by showing a racially balanced workforce, but might be validated by demonstrating local statistics on criminal records, or the lack of an adverse impact in employer hiring. For those employers who experience an impact, or who don’t want to rely on their ability to prove that there is no local or individualized adverse impact, the focus should be on establishing the “job-related and business necessity” defense to a disparate impact claim.
The guidance offers two ways for employers to establish this defense:
– Validate the criminal record exclusion for the position in question per the Uniform Guidelines on Employee Selection Procedures standards (if such validation is possible); or
– Develop a targeted screen considering the nature or gravity of the criminal offense, the time elapsed since the offense or completion of the sentence, and the nature of the job. Then provide an individualized assessment for all individuals excluded by the screen to determine whether the policy as applied is job-related and consistent with business necessity.
An individualized assessment may be time consuming and costly for employers, particularly those with heavy turnover or a lot of hiring activity. The agency wants an assessment to include an opportunity for the individual to demonstrate that the exclusion does not properly apply to him or her, and requires the employer to consider other relevant individualized evidence as to whether the policy as applied is job-related and consistent with business necessity or not. Although individualized screens are not required by Title VII in all circumstances, the EEOC suggests that the failure to use an individualized assessment is more likely to violate Title VII.
Although the 52-page guidance, available here, is a lot to digest in one sitting, employers do have the benefit of the agency’s suggested “best practices” which include:
– Eliminating overbroad policies that exclude individuals from employment based on any criminal record;
– Tailoring policies for screening applicants to identify the requirements of the job and determine specific offenses that may demonstrate unfitness for such jobs;
– Limit inquiries to criminal records for which exclusions are job related and consistent with business necessity;
– Train managers and hiring professionals on the new tailored policies and Title VII discrimination.
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