Analysis of the new EEOC enforcement guidance on the use of arrests and convictions in employment decisions
Posted on 05/02/2012 at 02:51 PM by Jill Jensen-Welch
In our first post (#1), we provided a to-do list based on the April 25, 2012 Enforcement Guidance (EG) issued by the EEOC on the 'Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII.' In this post (#2), we'll analyze the EG so you understand why you need to turn your system for handling criminal records inside-out. Where the EEOC Comes In To be clear, the EEOC is responsible for enforcing Title VII, which prohibits discrimination in employment based on the protected characteristics of race, national origin, color, sex (and pregnancy), and religion. But Title VII does not include being arrested or being convicted of a crime as a protected characteristic and neither does the Iowa Civil Rights Act. We recently heard that at least one Iowa municipality is informally considering amending their local ordinance to protect those convicted of a crime from employment discrimination. Iowa employers may want to watch the agendas of their local commissions and of the local city council. Also, Title VII does not regulate criminal background checks or the acquisition of criminal history information in employment. That is regulated under the Fair Credit Reporting Act, as enforced by the Federal Trade Commission, for employers using a 'consumer reporting agency' to conduct criminal background checks. So where does the EEOC get the authority to issue guidance on discrimination in the use of arrests and convictions for employment decisions? Statistically, African Americans and Hispanics are arrested and convicted more than whites, and studies cited by the EEOC show that criminal records have a negative impact on employability on these minority groups. Hence, the EEOC has a longstanding interest under Title VII in preventing both disparate treatment and disparate impact discrimination against African Americans and Hispanics that can occur when employment decisions are motivated by criminal records. Disparate Treatment Discrimination Stereotypes have developed such that the criminal history of a white person can be seen as less of a problem by some than the same criminal history of an African American or Hispanic. When this affects an employment decision, disparate treatment discrimination under Title VII has occurred. The EG devotes a little, but not much, space to disparate treatment discrimination. It provides examples of where the EEOC will look for evidence of such stereotypes and unlawful motivations, including statements of decision makers, inconsistencies in the hiring process, similarly situated comparators, matched pair testing done by government agencies or advocacy groups, as well as applicant flow and workforce statistics. Efforts to prevent claims of disparate treatment discrimination over the use of criminal background information should include obtaining criminal histories consistently across applicants/employees and within similar job categories, then evaluating that information in a fair and consistent manner that does not take race or national origin into account. Disparate Impact Discrimination Disparate impact discrimination occurs when an employer's neutral and evenly-applied policy or practice regarding applicants or employees including a policy or practice with criminal records falls more heavily on African Americans and Hispanics (or any other protected class or basis). This violates Title VII, too, and it is clearly the focus of the EG. The EG lays out the burden-shifting analysis the EEOC undertakes to analyze a disparate impact claim. First, the applicant/employee carries the burden to identify a specific, neutral and evenly-applied policy or practice of the employer that is resulting in a discriminatory disparate impact. In this context, such a policy or practice may include questions about convictions on the job application or in the interview, practices for obtaining criminal background checks, or the way the employer handles the criminal histories of applicants/employees. Disparate impact is shown with statistical evidence. The EEOC cautions that a racially balanced workforce will not necessarily disprove disparate impact. The EEOC allows employers to submit evidence that arrest or conviction statistics in the local community differ from national statistics to rebut the applicant's/employee's disparate impact evidence. (Never mind that this seems to unfairly shift the burden of proof to the employer, which is not proper at the first stage.) For the next stage of the analysis, the employer carries the burden to rebut the evidence of disparate impact. The EG provides three options here, which will be discussed in detail below. For the third and final stage, the burden shifts back to the applicant/employee to show that a less discriminatory alternative policy or practice exists to serve the employer's legitimate goals as effectively as the challenged policy or practice, but the employer refused to adopt it. The EG spends precious little time on this final analysis. We suggest that the prepared and cautious employer will monitor its selection and retention policies and practices, vis-à-vis criminal records, to identify disparate impact and consider alternatives if any disparate impact is discovered. Rebutting Disparate Impact Evidence: What's an Employer To Do? Sometimes a disparate impact cannot be justified. The EEOC lists three ways employers can rebut evidence of disparate impact due to use of criminal records.
- Other Federal Laws If a federal law prohibits hiring or employing someone with a particular criminal record in a particular job or industry, then the employer has a pretty good defense against unlawful discrimination. As slam-dunk as this defense appears, there are a couple of interesting catches. If the federal law only requires exclusion from employment for a period of time, rather than indefinitely, then the employer who extends that exclusionary time may be unlawfully discriminating. Also, if the federal law provides an appeal or waiver process, the employer would be wise to use it (or advise the applicant/employee to use it). Finally, complying with the state and local laws does not provide the employer with this same defense. The EG advises that Title VII may pre-empt state or local laws that are less protective. . A number of laws exclude persons convicted of certain crimes from working in federally insured financial institutions. Some of them provide an indefinite bar of employment, others just a 10 year bar, and some of them have appeal or waiver procedures. Banks, thrifts, credit unions, and other financial institutions should seek competent legal counsel to help navigate these complicated waters when developing policies or practices regarding employment decisions for persons with criminal records - including when developing Targeted Screens and Individualized Assessments. . Other industries and occupations that the EG notes (in its non-exhaustive list) that may be subject to federal laws regarding criminal records and employment decisions include child care workers in federal agencies or facilities, port workers, the insurance industry, employee benefits workers, workers in Medicare or state funded health programs, federal defense contractors, federal government contractors, and court-imposed occupational restrictions.
- UGESP Validation The EEOC's Uniform Guidance for Employee Selection Procedures (UGESP) contains a complex and detailed process for statistically validating any part of the selection process. Although normally used to validate employment "tests", the UGESP can be used for other selection requirements. We doubt many employers will take this route to validate the use of criminal records information in the selection process given its complexity and cost.
- Targeted Screen and Individualized Assessments The most likely path employers will take to comply with the EG is the Targeted Screen and Individualized Assessments. Because of this, it bears special attention. We'll cover that in our final post (#3) in this series regarding the EEOC's new enforcement guidance.
For more information on the EEOC's guidance on the use of 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 email@example.com, or contact another member of the firm's Employment Law and Labor Law Practice Group at firstname.lastname@example.org.
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