Use of Criminal Data Not Going Away but Individualized Assessments of Applicants are Favored, Bright Line Tests Can Result in Disparate Impact.

On April 25, 2012, the EEOC issued what it is calling “Enforcement Guidance” on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964. The Guidance does not prohibit employers from using criminal data in their pre-employment and employment screening practices, but it does emphasize that job relatedness consistent with business necessity coupled with an “individual assessment” by an employer should be performed in connection with each hiring or employment decision. The EEOC specifically allows for what they call “Targeted Exclusions” (many employers call these criminal hiring matrices) absent individual assessments, so long as the targeted exclusions are designed based on the nature and gravity of the offense/conduct, the time that has passed since the offense, conduct and/or completion of the sentence; and, the nature of the job held or sought, so long as the “nexus” is “tight” and takes into consideration “fact-based evidence, legal requirements and/or relevant and available studies”.

The EEOC specifically indicates that individual assessments can and should – in addition to the above three factors – take into account any information provided by the individual in question regarding:

  • The facts or circumstances surrounding the offense or conduct;
  • The number of offenses for which the individual was convicted;
  • Older age at the time of conviction, or release from prison;
  • Evidence that the individual performed the same type of work, post conviction, with the same or a different employer, with no known incidents of criminal conduct;
  • The length and consistency of employment history before and after the offense or conduct;
  • Rehabilitation efforts, e.g., education/training;
  • Employment or character references and any other information regarding fitness for the particular position; and
  • Whether the individual is bonded under a federal, state, or local bonding program.

If an individual does not respond to the employer’s request to conduct the individual assessment, the employer can then make a decision without the information, according to the Guidance. See EEOC Guidance V(B)(9).

The EEOC does also acknowledge and uphold the use of criminal record requirements spelled out by federal law or regulation for certain positions in certain industries which would require the use of criminal record searches for certain airport workers, federal law enforcement officers, child care workers in federal agencies or facilities, bank employees, port workers and others. The EEOC also supported the use of criminal records for purposes of Security Clearances and Federal Government employees and contractors, so long as “employer best practices” are followed and are in compliance with Title VII.

The EEOC did spell out what they view to be “Employer Best Practices” and they cite the following:

  • Eliminate policies or practices that exclude people from employment based on any criminal record.
  • Train managers, hiring officials, and decision makers about Title VII and its prohibition on employment discrimination.
  • Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct.
  • Identify essential job requirements and the actual circumstances under which the jobs are performed.
    • Determine the specific offenses that may demonstrate unfitness for performing such jobs.
      • Identify the criminal offenses based on all available evidence.
    • Determine the duration of exclusions for criminal conduct based on all available evidence.
      • Include an individualized assessment.
    • Record the justification for the policy and procedures.
    • Note and keep a record of consultations and research considered in crafting the policy and procedures.
  • Train managers, hiring officials, and decision makers on how to implement the policy and procedures consistent with Title VII.
  • When asking questions about criminal records, limit inquiries to records for which exclusion would be job related for the position in question and consistent with business necessity.
  • Keep information about applicants’ and employees’ criminal records confidential. Only use it for the purpose for which it was intended.

We like you will be reviewing this guidance (which is 30 pages in length) and urge you to engage your legal counsel to help you evaluate and update your current screening policies and practices, and to additionally review your current criminal hiring matrix as well as whether you are providing an opportunity for an “individual assessment” as defined by the EEOC in your current process.

Please do not hesitate to contact your PeopleFacts Compliance team if you have any additional questions. Links to the EEOC Documents issued today in connection with this Guidance are as follows: