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November 12 2012

EEOC Guidance Indicates that Employers Should Think Twice Before Using Criminal History Records to Make Employment Decisions

By: Nikole L. Canute

Employers evaluating job candidates have an abundance of information at their fingertips.  Most background checks, and sometimes a quick Google search, will reveal a candidate's prior arrest(s), regardless of whether he/she has ever been convicted of a crime.  Employers should think twice, however, before using arrest and/or conviction records in making employment decisions.

 Earlier this year, the Equal Employment Opportunity Commission (EEOC) issued Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964.  In the Guidance, the EEOC cautioned that employers who use arrest and/or conviction records in making employment decisions may unwittingly be violating the civil rights of job candidates.  Specifically, the EEOC addressed two ways in which an employer's use of criminal history information could violate the Act:  (1) employers may treat job applicants with similar criminal records differently because of their race, color, religion, sex, or national origin, or (2) employers who uniformly exclude candidates with particular types of criminal records may disproportionately and unjustifiably exclude people of a particular race or national origin.

 The EEOC generally recommends that employers assess whether a criminal record is "job related" prior to using it in making a decision, and that employers make individualized determinations.  In order to minimize potential claims under Title VII of the Act, employers who consult job candidates' criminal history records should keep a few key concepts in mind:

  1. An arrest record does not prove that the conduct occurred.  Generally, employers should avoid using the fact of an arrest to make an adverse employment decision.  An employer may act, however, if other evidence exists that a candidate committed acts that disqualify the candidate from a particular position.
  2.  Not all criminal convictions matter.  For example, the fact that an applicant for a construction job was convicted of public intoxication may have no effect on the applicant's fitness for the job.  On the other hand, that applicant's prior conviction for theft of construction materials obviously impacts the candidate's fitness for the position.  Employers should evaluate whether a conviction is "job related" before using it to exclude a candidate.
  3.  Policies or practices that exclude everyone with a criminal record from employment without the opportunity to individual assessment will likely be deemed by the EEOC to violate the Act.  Due to the potentially discriminatory impact of these policies, the EEOC cautions employers that with some limited exceptions (e.g., applicants for positions requiring security clearance, etc.), these policies are not permitted.

The EEOC's Guidance may be obtained from the EEOC's website, www.eeoc.gov.

Employers should also keep in mind that criminal history records are considered "consumer reports" under the federal Fair Credit Reporting Act (FCRA).  The FCRA contains specific rules that an employer must follow when using "consumer reports" to make employment decisions, including obtaining written permission from the candidate prior to obtaining the reports, and providing notices to the candidate.  Significantly, beginning January 1, 2013, the Summary of Rights form that must be distributed to a candidate by an employer using a "consumer report" to make an adverse employment decision must be updated to reflect requirements imposed by the Consumer Financial Protection Bureau.

If you would like to discuss use of criminal history records or any other employment issue, please contact our office.