EEOC GUIDANCE ON CRIMINAL BACKGROUND CHECKS

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1 (817) Ronald L. Adams Matthew W. Barrier Jodi L. Bender A. William Brackett Janet S. Bubert Bruce S. Campbell Joseph F. Cleveland, Jr. J. Heath Coffman James A. Creel Laura W. Docker Joseph A. Drago Henri J. Dussault Luther W. Ellis Carter L. Ferguson Richard H. Gateley Kristin J. Good D. Alexander Harrell Claudine G. Jackson Theodore Mack R. Bruce Moon Elaine S. Morris Thomas E. Myers J. Andrew Norman Russell J. Norment Scot Pierce Jerrod L. Rinehart April F. Robbins Michael L. Schneiderman Lynn Rossi Scott Coby D. Smith Christopher E. Stoy James M. Whitton EEOC GUIDANCE ON CRIMINAL BACKGROUND CHECKS Janet Bubert Brackett & Ellis, P.C. 100 Main Street Fort Worth, Texas (817) I. EEOC Enforcement Guidance No , Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act of 1964, April 25, Available at II. Criminal History Statistics A. Approximately 1 out of every 3 of all Americans will experience at least one arrest for a non-traffic offense by age 23. B. As of 2007, 3.2% of all adults (1 in 31) were under some form of criminal justice control (probation, parole, prison, or jail). C. As of 2001, there were 4.29 million former prisoners living in the United States. D. From , there was a 37% increase in the number of felony offenders sentenced in state court. E. In the last 25 years, the number of prison and jail inmates has grown by 274%, bringing the total prison population to 2.3 million. F. In the last 25 years, individuals under community supervision grew to 5.1 million. G. More than 1 in every 100 adults is currently in prison. H. In 2008, ex-prisoners were approximately 3% of the total working-age population, or about 1 in every 33 working-age adults. EEOC GUIDANCE ON CRIMINAL BACKGROUND CHECKS Page 1

2 I. In 2008, ex-felons (not all of whom serve prison sentences) were approximately 7% of the total working-age population, or about 1 in every 15 working-age adults. J. The total number of probationers, parolees, prisoners and inmates is more than 7.3 million adults; larger than the combined populations of Chicago, Philadelphia, San Diego and Dallas, and larger than the populations of 38 states and the District of Columbia. III. Criminal History Discrepancies by Race A. Incarceration in America is concentrated among African-American men age 18-64: 1. White males - 1 in every Hispanic males - 1 in every African-American - 1 in every 12 B. Incarceration rates are worse for year old males without a high school diploma: 1. White males 1 in every 8 2. Hispanic males 1 in every African-American males 1 in every 3 C. If incarceration rates remain unchanged: 1. White males 1 in every 17 is expected to serve time in prison in their lifetime. 2. Hispanic males 1 in every 6 is expected to serve time in prison in their lifetime. 3. African-American males 1 in every 3 is expected to serve time in prison in their lifetime. D. African-Americans and Hispanics are arrested in numbers disproportionate to their representation in the general population: 1. In 2010, 28% of all arrests were of African-Americans, even though African-Americans are 14% of the general population. 2. In 2008, Hispanics were arrested for federal drug charges at a rate three times greater than their numbers in the general population. EEOC GUIDANCE ON CRIMINAL BACKGROUND CHECKS Page 2

3 3. Rates of illicit drug use: 9.1% Whites, 8.1 % Hispanics, 10.7% African- Americans. 4. Even though the percentage of persons using illegal drugs is consistent, African-Americans and Hispanics are more likely to be arrested, convicted, or sentenced for drug offenses. 5. Whites use marijuana at higher rates than African Americans or Hispanics, but the arrest rate of Hispanics is three times greater, and the arrest rate of African-Americans is five times greater than the arrest rate for Whites for marijuana-related offenses. IV. Potential Problems with Criminal History Records A. Available from multiple sources (federal, state, local) and multiple agencies. 1. Court records. 2. Law enforcement records. 3. Registries (sex offender, outstanding warrants). 4. Criminal record repositories. 5. FBI Interstate Identification Index. B. Records may not be correct or up-to-date. V. EEOC Jurisdiction 1. Final dispositions missing. 2. Sealed records may be available from other sources outside courthouse. 3. Misspellings, clerical errors, and intentionally-provided inaccurate information. A. Enforcement of Title VII prohibition of discrimination in employment decisions based on race, color, religion, or national origin. B. Title VII liability for employment discrimination 1. Disparate Treatment 2. Disparate Impact EEOC GUIDANCE ON CRIMINAL BACKGROUND CHECKS Page 3

4 C. Disparate Treatment Rejecting a Title VII-protected applicant based on criminal record information, but hiring applicant of another race who has a comparable criminal record. Evidence of bias: 1. Biased statements Derogatory to protected class or group-related stereotypes regarding criminality. 2. Inconsistencies in the hiring process Different treatment. 3. Similarly-situated comparators Different treatment. 4. Employment testing Match-paired testing reveals different treatment because of protected status. 5. Statistical evidence Review employer s applicant data, workforce data, or third-party criminal background history data. D. Disparate Impact Neutral policy or practice disproportionately screens out a Title VII-protected group and employer fails to prove that the policy or practice is job-related for the position in question and consistent with business necessity. 1. Determining Prima Facie Case of Disparate Impact Does the policy or practice deprive a disproportionate number of Title VII-protected individuals of employment opportunities? a. Identify Elements of the Policy or Practice: i. Text of policy/practice, associated documentation, implementation information. ii. iii. iv. Which offenses are reported. Whether convictions, arrests, charges, or criminal incidents are reported. Length of time since criminal event. v. Jobs for which screening is conducted. vi. Training/guidance documents used by employer. b. Evidence of Disparate Impact: i. Criminal record exclusions result in a disparate impact based on race and national origin. ii. Percent of incarceration/arrest rates in geographical area. EEOC GUIDANCE ON CRIMINAL BACKGROUND CHECKS Page 4

5 iii. iv. Applicant data. Applicant flow information maintained pursuant to Uniform Guidelines on Employee Selection Procedures. v. Workforce data. vi. vii. viii. ix. Criminal history background check data. Demographic statistics. Incarceration/conviction data. Labor market statistics. x. Employer s racially-balanced workforce does not disprove disparate impact. xi. Employer s reputation in the community for excluding individuals with criminal records: ex-offender employment programs, individual testimony, employer statements, recruitment practices, and publicly-posted notices. 2. Burden-shifting Is the Challenged Policy or Practice Job-related for the Position in Question and Consistent with Business Necessity? a. Exclusionary policy or practice must bear a demonstrable relationship to successful performance of the jobs for which it is used and measures the person for the job and not the person in the abstract. Griggs v. Duke Power Company, 401 U.S. 424 (1971). b. Exclusionary policy must be shown to be necessary for safe and efficient job performance. Dothard v. Rawlinson, 433 U.S. 321 (1977). c. Factors from Green v. Missouri Pacific Railroad, 523 F.2d 1290 (8 th Cir. 1975); 549 F.2d 1158 (8 th Cir. 1977): i. Nature and gravity of the offense or conduct ii. iii. Time passed since offenses/conduct or sentence completion Nature of job held or sought d. Justify criminal record exclusions by demonstrating that they accurately distinguish between applicants who pose an unacceptable level of risk and those who do not. El v. EEOC GUIDANCE ON CRIMINAL BACKGROUND CHECKS Page 5

6 Southeastern Pennsylvania Transportation Authority Factors, 479 F.3d 232 (3 rd Cir. 2007). VI. Decision-Making Considerations A. Arrest Records 1. Arrests are not proof of criminal conduct. a. Many arrests do not result in criminal charges. b. Charges are often dismissed. c. Even if prosecuted, individual is innocent until proven guilty. d. Final disposition following an arrest may not be reported. e. May include inaccuracies, or history may still be reported after expungement. 2. Arrest may trigger inquiry about underlying conduct, and whether that justifies an adverse employment action. 3. Employer may make an employment decision based on the conduct underlying the arrest if the conduct makes the individual unfit for the position in question. The conduct, not the arrest, is relevant for employment purposes. B. Conviction Records 1. Conviction record is evidence that the person engaged in the criminal conduct. 2. However, there may be errors, outdated records, or other reasons for not relying on conviction evidence (ex. expunged records, felonies downgraded to misdemeanors, but still reported as felonies). 3. Recommendation Do not ask about convictions on job applications; when and if you do, only ask about convictions for which the exclusion would be job-related for the position and consistent with business necessity. C. Determining Job-Relatedness and Business Necessity 1. Employer must show exclusion policies effectively link the anticipated danger related to specific criminal conduct with the risks inherent in the duties of a particular position. EEOC GUIDANCE ON CRIMINAL BACKGROUND CHECKS Page 6

7 2. Employers will consistently meet the defense if: a. Validation - The employer validates the criminal conduct screen for the position in question per the Uniform Guidelines on Employee Selection Procedures. See 29 C.F.R. Chapter b. Targeted Screening - The employer develops a targeted screening process that considers the nature of the crime, the time elapsed, and the nature of the job, and then provides an opportunity for an individualized assessment for those excluded by the screen to determine if the exclusion is job-related and consistent with business necessity. c. Individualized assessment includes: i. Notice to individual who is screened out. ii. iii. Opportunity to demonstrate exclusions should not be applied due to his/her particular circumstances. Employer considers whether information supplied warrants an exception to the exclusion and/or the policy, as applied, is not job-related and consistent with business necessity. d. Individualized assessment is not required for criminal conduct with a demonstrably tight nexus to the position in question. (i.e., sex offenders and school employers. See 25 U.S.C. 3207(b), prohibiting felons or those with two or more misdemeanors from working with Indian children, if their convictions involved crimes of violence, sexual assault, molestation, exploitation, contact or prostitution, crimes against persons, or offenses committed against children) D. Criminal Conduct Screens Using Green Factors 1. Nature and Gravity of the Offense or Conduct a. Consider the harm caused by the crime. b. Consider the legal elements of the crime. c. Misdemeanors are less severe than felonies. 2. Time Passed Since Offense, Conduct or Sentence Completion a. Permanent exclusions of any and all offenses are not consistent with business necessity. EEOC GUIDANCE ON CRIMINAL BACKGROUND CHECKS Page 7

8 b. Time passed is probative of risk posed. c. Risk of recidivism declines over time. Different studies show that 6-15 years after conviction, the risk of criminal conduct is the same as for non-offenders. 3. Nature of Job Sought or Held a. Job title and duties. b. Essential functions of the job. c. Circumstances under which the job is performed (level of supervision, interaction with co-workers and/or minors). d. Job environment. E. Targeted Exclusion Guided by Green Factors 1. Must be narrowly tailored to identify criminal conduct with a demonstrably tight nexus to the position. 2. Title VII does not necessarily require individualized assessments in all circumstances. F. Individualized Assessments 1. Helps 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. 2. Steps: a. Employer informs individual of potential exclusion. b. Individual has opportunity to demonstrate that the exclusion does not properly apply to him or her. c. Employer considers whether additional information shows that the policy, as applied, is not job-related and consistent with business necessity. 3. Individual s Input a. Incorrect, incomplete, or sealed criminal history. b. Incorrect identification in criminal history. EEOC GUIDANCE ON CRIMINAL BACKGROUND CHECKS Page 8

9 c. Facts or circumstances surrounding conduct. d. Number of offenses for which convicted. e. Age at time of conduct, conviction, or prison release. f. Evidence of same type of work, without incident. g. Length of employment history before and after conduct. h. Rehabilitation, education, and training. i. Employment or character references. j. Information regarding fitness for the position. k. Bonding under federal, state, or local law. l. If the individual does not respond to the request for input, then the employer may make its employment decision without the information. 4. Less Discriminatory Alternative a. If an employer successfully demonstrates that its policy or practice is job-related for the position in question and consistent with business necessity, a Title VII plaintiff may still prevail if he or she can demonstrate that there is a less discriminatory alternative employment practice that serves the employer s legitimate goals as effectively as the challenged practice, but that the employer refused to adopt it. G. Positions Subject to Federal Prohibitions or Restrictions on Individuals with Criminal Records 1. Federal statutory or regulatory employment restriction is a defense to a discrimination charge. 2. If an employer goes beyond the scope of the exclusion, then the discretionary aspect of the policy is subject to Title VII analysis. 3. Title VII does not preempt federal statutes and regulations that govern eligibility for occupational licenses and registrations (securities, banking, transportation, and import/export). 4. Federal security clearance exclusions are a defense. EEOC GUIDANCE ON CRIMINAL BACKGROUND CHECKS Page 9

10 H. State and local laws that include employment prohibitions or restrictions based on criminal history may be pre-empted by Title VII if they require or permit what would be an unlawful act under Title VII VII. Employer Considerations for Best Practices A. General B. Policy 1. Eliminate policies and practices that exclude applicants and employees based on any criminal record. 2. Train decision-makers regarding Title VII. 3. Do not ask criminal history questions on application. a. Alternative: Notify applicants that if they are one of the finalist, they will be asked to submit to criminal history check and will be rejected if they refuse or if their history reflects an excludable offense b. Alternative: Prior to criminal history check on a finalist, ask for disclosure of criminal history 1. Develop a narrowly-tailored policy and procedure for screening applicants and employees for criminal conduct. a. Identify essential job requirements and job environment. b. Determine specific criminal offenses that demonstrate unfitness for performing certain jobs, based on all available evidence. c. Determine duration of exclusion for criminal conduct, based on all available evidence. d. Use an individualized assessment. (Consider development of a decision tree to evaluate criminal history). e. Create a multi-racial/multi-position committee to make decisions. f. Record justification for policies and procedures. g. Keep a record of consultations and research considered in drafting policies. 2. Train decision-makers on policy and procedure implementation consistent with Title VII. EEOC GUIDANCE ON CRIMINAL BACKGROUND CHECKS Page 10

11 C. Criminal Record Inquiries 1. Limit inquiries to records for which an exclusion would be job-related and consistent with business necessity. 2. Keep information confidential. a. Criminal background information may not be released or disclosed to any person except on court order or with the consent of the person who is the subject of the criminal history record information. Tex. Gov t Code b. Keep records separate from personnel records and follow recordsretention policies. VIII. State Statutory Provisions Regarding the Use of Criminal History Records in Higher Education Employment Decisions A. An institution of higher education is entitled to obtain criminal history record information pertaining to an applicant for employment for a security-sensitive position. The institution of higher education may deny employment to an applicant for a security-sensitive position who fails to provide a complete set of fingerprints upon request. Texas Education Code An institution of higher education may use criminal history record information only for the purpose of evaluating applicants for employment in security-sensitive positions. Security-sensitive positions shall be restricted to employees who handle currency, have access to a computer terminal, have access to a master key, or who work in an area of the institution which has been designated as a security-sensitive area. A security-sensitive position shall be so identified in the job description and advertisement for the position. 2. "Institution of higher education" means: a. an institution of higher education, as defined by Texas Education Code Section (8); and b. a private institution of higher education, as defined by Texas Education Code Section (15). B. The Texas Higher Education Coordinating Board and each institution of higher education are entitled to obtain from the department criminal history record information maintained by the department that relates to a person who is an applicant for a security-sensitive position at the coordinating board or institution, as applicable. Texas Government Code EEOC GUIDANCE ON CRIMINAL BACKGROUND CHECKS Page 11

12 1. "Institution of higher education": (a) (b) has the meaning assigned by Section , Education Code (public institutions of higher learning); or means a private institution of higher education that is accredited by the Commission on Colleges of the Southern Association of Colleges and Schools. 2. "Security-sensitive position" means an employment position held by an employee who: (a) (b) (c) (d) (e) (f) handles currency; has access to a computer terminal; has access to the personal information or identifying information of another person; has access to the financial information of the employer or another person; has access to a master key; or works in a location designated as a security-sensitive area. 3. Criminal history record information may be used only for the purpose of evaluating applicants for employment in security-sensitive positions. 4. Criminal history record information may not be released or disclosed to any person except on court order or with the consent of the person who is the subject of the criminal history record information. 5. All criminal history record information obtained about an individual shall be destroyed by the coordinating board or by the chief of police of the institution of higher education, as applicable, as soon as practicable after the individual becomes employed in a security-sensitive position and after the expiration of any probationary term of employment or, if the individual is not hired for a security-sensitive position, after the information is used for its authorized purpose. IX. Suggestions for Higher Education Policies Related to Security-Sensitive Positions A. Positions or areas should be designated as security sensitive by the hiring department in consultation with Human Resources, the appropriate dean or vice president, and the Office of the General Counsel. EEOC GUIDANCE ON CRIMINAL BACKGROUND CHECKS Page 12

13 Note: The institution should be able to articulate the reasons why positions are designated security sensitive. B. Human Resources should maintain the official list of security-sensitive positions. Human Resources may review all new positions and those with job content changes to determine if they should be designated security sensitive. C. Requests for criminal history information may be made regarding applicants for positions and/or areas listed as security sensitive or regarding current employees seeking a transfer to positions or areas designated as security sensitive. D. The hiring department adds security sensitive wording to position descriptions so identified as they are posted for recruitment. Job descriptions for security sensitive positions and/or areas shall include the following statement: "Specific job requirements or physical location of this position render the position security sensitive, and hereby subject it to the provisions of Section of the Texas Education Code." E. All postings and advertising for security sensitive positions must identify the positions as security sensitive within the meaning of Section of the Texas Education Code. F. After the results of the background investigation are evaluated, notify the interviewing supervisor of the results of the background investigation: Satisfactory: Conditional nature of offer of employment is lifted; selected applicant works in regular capacity. Unsatisfactory: The department will withdraw the conditional offer of employment, and the selected applicant will not be allowed to work in that security sensitive position. G. Once the hiring decision is made, all criminal history information concerning the applicant shall be sealed and retained in accordance with record retention policies. X. Recent EEOC Litigation Related to the Use of Criminal Backgrounds A. EEOC v. Peoplemark, Inc., No. 1:08-cv-907, 2011 U.S. Dist. LEXIS (W.D. Mich. March 31, 2011). 1. The EEOC filed a large, multi-state disparate impact case pursuant to Title VII of the Civil Rights Act of 1964 against Peoplemark, Inc.. Peoplemark is a temporary staffing company that hires people to do light industrial, clerical, and receptionist positions. The EEOC alleged that Peoplemark maintained a policy which denied the hiring or employment of any person with a criminal record. EEOC GUIDANCE ON CRIMINAL BACKGROUND CHECKS Page 13

14 2. The EEOC conducted a three-year investigation that resulted in over 18,000 pages of documents obtained from Peoplemark. The EEOC obtained evidence that Peoplemark hired numerous individuals with felony convictions. However, the EEOC continued its litigation, costing Peoplemark $749, in attorney fees alone. As a result, the U.S. District Court sanctioned the EEOC almost $1 million in attorney fees and expenses. B. Pepsi Settlement of EEOC Investigation 1. [I]n January 2012, the EEOC announced that it reached a $3.13 million dollar settlement with Pepsi Beverages for that company's alleged use of a criminal background check policy that had a disparate impact on African American job applicants. According to the EEOC, [u]nder Pepsi's former policy, job applicants who had been arrested pending prosecution were not hired for a permanent job even if they had never been convicted of any offense. Further, the policy denied employment to applicants who had been arrested or convicted of certain minor offenses. In announcing the settlement, the EEOC reiterated its position that [w]hen employers contemplate instituting a background check policy, the EEOC recommends that they take into consideration the nature and gravity of the offense, the time that has passed since the conviction and/or completion of the sentence, and the nature of the job sought in order to be sure that the exclusion is important for the particular position. Deborah Sudbury & Elaine Walsh, The EEOC Revisits Criminal Background Checks, Practical Lawyer (2012). C. Dollar General Case 1. Dollar General is facing EEOC scrutiny over its criminal background check policy. Dollar General s SEC filing statement indicates it has received a cause finding by the EEOC alleging that Dollar General s criminal background check policy, which excludes from employment individuals with certain criminal convictions for specified periods, may violate Title VII because it has disparate impact on African-American candidates and employees. 2. In response to the EEOC s charge, Dollar General claims in the SEC document that its current criminal-background policy is not only lawful but also necessary to protect its assets, shareholders investments, and to provide a safe working environment for its employees. Dollar General's Use of Criminal Background Check Faces EEOC Scrutiny, NASHVILLE BUSINESS JOURNAL.COM, 2012/09/10/dollar-generals-use-of-criminal.html (last visited February 1, 2013). EEOC GUIDANCE ON CRIMINAL BACKGROUND CHECKS Page 14

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