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
For its defense, an employer must prove that it had job-related reasons, consistent with business necessity, for its neutral policy or practice, even though the policy or practice may have caused a discriminatory disparate impact.  Under the EG, employers can meet this burden of proof with proper Targeted Screens.

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.

Individualized Assessment
This method of defense is not necessarily complete when a Targeted Screen excludes an individual from a specific job due to a criminal record.  The EEOC recommends another phase called Individualized Assessment.  Not to be confused with the individualized analysis conducted under the Americans with Disabilities Act to determine whether a person is disabled under the Act, the Individualized Assessment here is different.  It might be analogized to a “due process” requirement of notice and an opportunity to be heard.  In this, the Individualized Assessment is more like the Fair Credit Reporting Act’s requirement of pre-adverse action notice.

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 criteria are employers to use to develop and apply Targeted Screens and Individualized Analyses?  At a minimum, the EEOC’s new EG would require employers to consider three factors articulated by our own Eighth Circuit Court of Appeals in Green v. Missouri Pacific Railroad, way back in 1975.  The Green factors include the following:

1. The nature and gravity of the offense.
   For this factor, considerations include the harm caused by the crime (for example, property damage or personal injury), the legal elements required to prove the crime (for example, whether deception was part of the crime), and the classification of the crime (felony or misdemeanor, and the level of felony or misdemeanor).
2. The passage of time since the offense and/or the completion of the sentence.
   As the EEOC sees it, the longer the gap between the offense (or completion of the sentence) and the employment decision that is to be made, the less likely the conviction should serve as a bar to employment.  Permanent exclusions from employment rarely meet the business necessity test, unless a federal law requires an indefinite bar from a particular job or industry.  Here, the EEOC expects employers to obtain recidivism data in order to justify durational limits in Targeted Screens and Individualized Assessment.
3. The nature of the job sought or held.
   Concern over the conviction must be tied to a specific job for the Targeted Screen and Individualized Assessment to be properly applied.  Considerations include the job duties (not merely the title), the level of supervision to be provided, the working environment (e.g., private home, outdoors, warehouse), interaction with others (especially with vulnerable individuals), and the relationship of the criminal history to the job to be performed.

What Employers Can Do with Arrest Information
Arrests are not proof of criminal conduct; indeed, in the United States an arrestee is to be presumed innocent until proven otherwise (convicted).  The EEOC’s position in the EG cites to research showing that African Americans and Hispanics are arrested two to three times their proportion in the general population.  Furthermore, arrest records can be inaccurate or incomplete.  Although more and more criminal records are readily available online, such databases may not be timely, completely, or accurately maintained.  Therefore, under Title VII, employers generally cannot take adverse employment action based merely on arrest information about an applicant or employee.  However, as noted in the EG:

“Although an arrest record standing alone may not be used to deny an employment opportunity, an employer may make an employment decision based on the conduct underlying the arrest if the conduct makes the individual unfit for the position in question.  The conduct, not the arrest, is relevant for employment purposes.”

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
Employers may rely on convictions as evidence that the underlying criminal conduct occurred.  This is acceptable, even though the applicant or employee denies guilt and professes innocence when disclosing convictions or explaining them in the Individual Assessment phase.

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 515-246-4536/jjensen@dickinsonlaw.com, or contact another member of the firm’s Iowa Employment Law and Labor Law Group at employmentlaw@dickinsonlaw.com