On April 25, 2012, the Equal Employment Opportunity Commission (the "EEOC") issued updated enforcement guidance regarding when and how employers may use arrest or conviction records in the context of making employment decisions. The enforcement guidance and Q&A document are available on the EEOC's Website at www.eeoc.gov.
The purpose of the enforcement guidance document is to help employers comply with Title VII of the federal Civil Rights Act. The EEOC acknowledged that employers use criminal-background information for a number of legitimate purposes. Therefore, it does not advocate that employers abandon criminal-history screening entirely. Instead, the agency offers guidelines to help employers use criminal-history information without violating Title VII. The guidance discusses:
- How an employer's use of an individual's criminal history in making employment decisions could violate the prohibition against employment discrimination under Title VII;
- Federal court decisions analyzing Title VII as applied to criminal record exclusions;
- The differences between the treatment of arrest records and conviction records;
- The applicability of disparate treatment and analysis of the impact of disparate treatment under Title VII;
- Compliance with other federal laws or regulations that restrict or prohibit the employment of individuals with certain criminal records; and
- Best practices for employers.
The EEOC's guidance discusses two specific forms of prohibited discrimination that may arise when employers consider criminal-history information: disparate treatment and disparate impact.
Disparate-treatment discrimination occurs when a person is treated differently because of race, national origin, or other protected status. In the context of criminal-history screening, an employer may violate Title VII by treating candidates with similar criminal backgrounds differently. For example, assume that a Caucasian candidate and an African-American candidate both pleaded guilty to charges of possession and distribution of marijuana while in high school. When considering the candidates, the employer views the Caucasian candidate's infraction as an unimportant, youthful mistake. But he views the African American candidate's infraction as an indication of a "drug dealer type" of personality. The employer then offers the Caucasian candidate a second interview but rejects the African-American candidate. This could be a violation of Title VII because the employer's decision was driven by racial stereotypes.
Disparate impact occurs when an employer's neutral policy or practice has the effect of disproportionately screening out groups of people on the basis of their race, ethnicity, or other protected status. According to the EEOC, the risk of disparate impact is high when employers consider criminal-background information because some minority groups are arrested and incarcerated at disproportionately higher rates than the general population. The EEOC noted, "About 1 in 17 White men are expected to serve time in prison during their lifetime; by contrast, this rate climbs to 1 in 6 for Hispanic men; and to 1 in 3 for African-American men." Therefore, employers may screen out Hispanic and African-American candidates at disparately higher rates by following blanket criminal-history disqualification policies.
Finally, the agency urges employers to train hiring officials on how to lawfully implement the company's background screening policy. By taking this proactive approach, companies can prevent a number of employment discrimination suits while continuing to select the most qualified candidates for the job. As always, employers should consult competent employment legal counsel when making modifications to employment policies and procedures.
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