EEOC Issued Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions
The National Association of Professional Background Screeners (NAPBS) has issued a statement regarding the new Guidance issued by the EEOC. "NAPBS supports and promotes criminal background checks as an appropriate and necessary tool to help employers make informed hiring decisions and ensure the safety and well-being of their staff and customers.
Employers use background checks to protect their business interests, ensure the reliability of their workforce and to protect current employees, customers, members of the public, brand name and trade secret information; criminal history checks are a part of the overall screening of a potential employee."
The EEOC guidance is not binding on courts and carries no "official" legal weight. However, courts have relied on agency policy statements and the EEOC guidance in particular.
EEOC spokeswomen Christine Nazer provides this statement in response to the new Guidance and employers use of criminal history searches:
"The EEOC simply seeks to ensure that their use are undertaken carefully to ensure that employment opportunities are not denied inappropriately."
And, according to Commissioner Lipnic's opening statement at the public meeting, there may be instances "when particular criminal history will be so manifestly relevant to the position in question that an employer can lawfully screen out an applicant without further inquiry. A day care center need not ask an applicant to 'explain' a conviction of violence against a child, nor does a pharmacy have to bend over backward to justify why it excludes convicted drug deals from working in the pharmacy lab."
Rather than establishing all new rules the Guidance provides more detail on the current standards. The Guidance is aimed at employers and includes Best Practices for employers to consider when making employment decisions involving criminal records.
The Guidance is the first attempt since 1990 to update the commission's policy on criminal background checks. Current Standards already require employers to consider:
- the nature and gravity of the offense
- the time that has passed since the arrest and conviction
- the nature of the position sought
The EEOC will be enforcing Title VII with this Guidance in mind.
The Guidance discusses disparate treatment and disparate impact analysis under Title VII. EEOC Guidance assumes there is a disparate impact unless employer can show evidence that there is not. The Guidance states it will not be enough to show a diverse workforce.
Employers will need to show job relatedness and consistent business necessity through either
- Validation on the use of specific criminal history by having a study or expert testimony on data analysis about criminal conduct as related to work performance; or
- Develop a targeted screen using the following:
a. The nature and gravity of the offense - an employer should evaluate the harm caused, the legal elements of a crime and the classification of the crime.
b. The time that has passed since the arrest and conviction - an employer should look at the facts and circumstances of the arrest and evaluate studies of recidivism and
c. The nature of the position sought - an employer should examine the specific duties, function and environment of the job.
