By Allen Smith / SHRM
By a 4-1 vote, the Equal Employment Opportunity Commission (EEOC) on April 25, 2012, approved a new guidance on criminal background checks.
Consolidating and superseding previous EEOC guidance on criminal background checks, the guidance discourages blanket exclusions of individuals who have been convicted of crimes and encourages the use of individualized assessments of whether an employer’s criminal conduct exclusion is job related and consistent with business necessity.
However, Commissioner Constance Barker strongly opposed the guidance, saying that the process in developing the guidance wasn’t transparent and should have included a notice and comment period. She noted that the Senate Appropriations Committee had raised concerns about hasty changes to criminal background check guidance and said the guidance exceeds the agency’s authority.
The guidance provides a “major shift in interpreting the obligations of American businesses,” she remarked, saying that the guidance will harm business owners. Barker said she believes that many employers will conclude that they will never conduct a criminal background check unless it is required by federal law. And that in turn will hurt customers and clients because of the business risks that might arise if criminal background checks are not conducted, she cautioned.
Fellow Republican Commissioner Victoria Lipnic disagreed, remarking that the guidance was “worthy of bipartisan support.” Although Lipnic voted in favor of the guidance, saying that it “closely tracks well-known policies,” she did express some reservations about the guidance.
She noted that there should be an appropriate opportunity for individuals to explain past crimes and called this a “wise practice,” but she added that Title VII does not always require an individual assessment. For example, she remarked, a day care center would not need an individual assessment of a child molestation conviction before eliminating the individual from consideration. She expressed disappointment that the guidance did not provide more examples of such lawful practices.
In addition, Lipnic referenced a part of the guidance that provides that Title VII pre-empts a state or local law requiring a criminal background check if the check is not job related and consistent with business necessity. EEOC investigators in the field should “think long and hard before pursuing policies that arise from state law,” she said.
Katharine Parker, an attorney with the New York office of Proskauer Rose and attendee of the commission meeting on the guidance, did not think today’s guidance prohibited employers from drafting criminal background check policies based on state law. But she told SHRM Online that employers should review their procedures and make any necessary tweaks.
Barry Hartstein, an attorney with Littler Mendelson in Chicago, noted that while state laws might in some circumstances be too restrictive and also inconsistent with Title VII, if federal law requires criminal background checks the federal law must be followed.
Job Related and Consistent with Business Necessity
The guidance provides that there are two circumstances in which the commission believes that employers will meet the “job related and consistent with business necessity defense” consistently:
The employer validates the criminal conduct screen for the position in question according to the Uniform Guidelines on Employee Selection Procedures standards if data about criminal conduct as related to subsequent work performance is available and such validation is possible.
The employer develops a targeted screen considering at least the nature of the crime, the time elapsed and the nature of the job and then provides an opportunity for an individualized assessment for people excluded by the screen to determine whether the policy as applied is job related and consistent with business necessity.
The individualized assessment would consist of:
A notice to the person that he or she has been screened out because of a criminal conviction.
An opportunity for the individual to demonstrate that the exclusion should not be applied because of his or her particular circumstances.
The employer’s consideration as to whether the additional information provided by the person warrants an exception to the exclusion and shows that the policy as applied is not job related and consistent with business necessity.
Title VII “does not necessarily require individualized assessment in all circumstances,” the guidance provides. “However, the use of individualized assessments can help employers avoid Title VII liability by allowing them to consider more complete information on individual applicants or employees, as part of a policy that is job related and consistent with business necessity.”
The individual’s showing may include information that he or she was not identified correctly in the criminal record or that the record is otherwise inaccurate. Other relevant individualized evidence includes:
The facts and 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. (Recidivism rates tend to decline as ex-offenders’ ages increase.)
Evidence that the individual performed the same type of work, post conviction, with the same or a different employer, with no known incident of criminal conduct.
The length and consistency of employment history before and after the offense or conduct.
Rehabilitation efforts, such as education and training.
Employment and character references and any other information regarding fitness for the particular position.
Whether the individual is bonded under a federal, state or local bonding program.
Commissioner Chai Feldblum defended the criminal background check guidance and process for issuing it, noting that subregulatory guidance does not typically go through the notice and comment period. She added that it might be useful to use a public comment period.
She noted that, according to the Department of Justice’s Bureau of Justice Statistics, assuming that incarceration rates remain unchanged, about one in 17 white men are expected to serve time in prison during their lifetime. This rate climbs to one in six for Hispanic men and one in three for black men. “What sort of society is that?” Feldblum asked, noting that the commission has the authority to enforce a civil rights law that prohibits policies that have a disparate impact unless they are job related and consistent with business necessity.
“In this economic climate of continued high unemployment, particularly in communities of color, it was critical and truly momentous for the EEOC to take such a proactive step to help all workers and employers,” said Ray McClain, director of the Lawyers’ Committee’s Employment Discrimination Project. “No longer will persons with criminal histories be permanently excluded from the workforce.”
Although the commission did not issue rumored guidances on credit checks or leave as a reasonable accommodation, Feldblum said the commission will continue to work on those matters. There needs to be additional time in considering the accommodation guidance, she said, to arrive at “a workable, credible guidance.”