Iowa Employer Law Blog
New EEOC enforcement guidance on arrests and convictions in employment decisions: Targeted Screens and Individualized Assessments
May. 3, 2012 – Jill R. Jensen-Welch, Iowa Employer Law Blog
In this, our final post (#3) on the April 25, 2012 Enforcement Guidance (EG) issued by the EEOC regarding “Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII”, we discuss Targeted Screens and Individualized Assessments. Together, these represent one of the methods employers can use to rebut evidence of disparate impact discrimination that may arise out of the use of arrest and conviction records—and the most likely method employers will use.
Targeted Screens are used to identify applicants or employees who legitimately should be screened out due to a criminal record. Because a Targeted Screen needs to be narrowly tailored in order to link particular criminal records to particular jobs, employers will likely have to create multiple Targeted Screens. Each Targeted Screen must be documented, including the data and rationale behind the decisions for the screen.
Per the EG, an Individualized Assessment requires giving notice to the individual that his criminal record caused him to be screened out (excluded) from employment. While the EG is silent as to the content of the notice, employers would be wise to specifically identify the conviction and why it bars employment in the job at issue. In addition, employers may consider providing the individual with a summary of the Targeted Screen’s factors.
Then, the individual is to be given an opportunity to explain the criminal record and demonstrate why the Targeted Screen’s exclusion should not be applied to him/her under the circumstances. Such information, per the EG, may include evidence of an error in the criminal record, facts surrounding the conviction, age at the time of conviction and/or release from prison, evidence of a clean criminal and employment record since release, rehabilitation efforts, positive references, and evidence he/she is bondable.
Finally, under the EEOC’s scheme, the employer is to give the individual further consideration. This may lead to an exception to the Targeted Screen, or the realization that the Targeted Screen needs to be modified or is not operating properly.
The Green Factors
What Employers Can Do with Arrest Information
Employers may engage in their own investigation and evaluation of the conduct underlying an applicant’s or employee’s arrest, but not the arrest itself, to take action. (As an example of the distinction, Iowa employers may recall the next-day firing of an elementary school principal the day following his arrest for child pornography.) In addition, if an arrest results in the loss of a license or registration that is required as an essential function of the job, the employer may take action based on that result.
What Employers Can Do with Conviction Information
Yet even conviction records should be approached with caution by employers because they can be inaccurate, incomplete, or outdated. There also may be other facts and circumstances to indicate that the conviction record is not reliable evidence that the applicant or employee actually engaged in the criminal conduct. For example, an individual may have steadfastedly professed innocence, despite conviction, and be out of prison on bond awaiting a new trial because DNA testing (which wasn’t available at the time of conviction) indicates innocence. This is why the EEOC requires employers to defend actions taken in response to criminal convictions by one or more of three methods—exclusion under federal law, validation under the Uniform Guide on Employee Selection Procedures, or Targeted Screens and Individualized Assessments (which we discussed in detail in this post).
For more information on the EEOC’s guidance regarding Targeted Screens and Individualized Analyses for handling arrests, convictions, and criminal background checks of applicants or employees, or to review your policies/practices on this topic, see our other posts on the EG, contact attorney Jill Jensen-Welch at firstname.lastname@example.org, or contact another member of the firm’s Iowa Employment Law and Labor Law Group at email@example.com
Tags: arrest and conviction records, disparate impact discrimination, EEOC, employee criminal conduct, employment decisions, hiring