TCL > December 2012 Issue > The EEOC s New Enforcement Guidance on the Use of Criminal Background Checks

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1 TCL > December 2012 Issue > The EEOC s New Enforcement Guidance on the Use of Criminal Background Checks The Colorado Lawyer December 2012 Vol. 41, No. 12 [Page 45] 2012 The Colorado Lawyer and Colorado Bar Association. All Rights Reserved. All material from The Colorado Lawyer provided via this World Wide Web server is copyrighted by the Colorado Bar Association. Before accessing any specific article, click here for disclaimer information. Articles Labor and Employment Law The EEOC s New Enforcement Guidance on the Use of Criminal Background Checks by Catherine A. Tallerico Labor and Employment Law articles are sponsored by the CBA Labor and Employment Law Section to present current issues and topics of interest to attorneys, judges, and legal and judicial administrators on all aspects of labor and employment law in Colorado. Coordinating Editor John M. Husband, Denver, of Holland & Hart LLP (303) , About the Author Catherine A. Tallerico is a member of Lyons Gaddis Kahn & Hall, PC s Government Practice Group and specializes in representing governmental entities, public officials, and government employees. She provides counsel and advice on employment-related matters and assists employers with personnel matters, internal investigations, and compliance with state and federal laws. She defends employers against charges filed with administrative agencies and in litigation and advises school districts on special education, civil rights, and student discipline Is an arrest after a football game brawl fifteen years ago an automatic disqualifier from a job as a company driver? What about a ten-year-old DUI conviction? The Equal Employment Opportunity Commission urges restraint on

2 the use of criminal background information in its new Guidance. The Equal Employment Opportunity Commission (EEOC) enforces Title VII of the Civil Rights Act 1964, as amended (Title VII), which prohibits employment discrimination based on race, color, religion, sex, or national origin. 1 On April 25, 2012, the EEOC released its "Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964" (Guidance), concerning the use of criminal records by employers. 2 The Guidance was issued as part of the EEOC s efforts to eliminate unlawful discrimination in employment screening for hiring or retention by entities covered by Title VII, which include private employers, as well as federal, state, and local governments. 3 In the fifty-two-page Guidance, the EEOC describes the circumstances under which an employer s use of arrest and conviction records can violate Title VII s disparate treatment and disparate impact theories. 4 The EEOC determined that the Guidance was needed to generally address the increase in the number of Americans who have had contact with the criminal justice system in the past twenty years, specifically the disproportionately high conviction rates of African American and Hispanic men. 5 Sobering statistics demonstrate a significant increase in the number of Americans who have had contact with the criminal justice system. In 1991, 1.8% of the adult American population had served time in prison. By 2007, 3.2% of all adults in the American population were under some form of correctional control involving probation, parole, prison, or jail. 6 If incarceration rates do not decrease, the U.S. Department of Justice projects that approximately 6.6% of all people born in the United States in 2001 will serve time in a state or federal prison in their lifetime. 7 A disproportionate number of these people will be African Americans and Hispanics who are arrested at a rate that is two to three times greater than that of the general population. 8 The EEOC is concerned that reliance on criminal records creates barriers to employment based on the disproportionate number of African Americans and Hispanics convicted of crimes. 9 Additionally, the Guidance reports that recent studies have found a number of state and federal criminal record databases "include incomplete criminal records" or that the "criminal records may be inaccurate." 10 The EEOC s Office of Legal Counsel noted that a review of criminal history information often is part of the initial employment screening process. 11 Employers use criminal history information to combat theft and fraud, avoid workplace violence, and avoid potential liability for negligent hiring. 12 The EEOC relies on a 2010 survey conducted by the Society for

3 Human Resource Management, which reported that 92% of responding employers said they subjected all or some job candidates to criminal background checks. 13 The EEOC s Guidance expressly acknowledges that having a criminal record is not listed as a protected status under Title VII. 14 Therefore, coverage under the federal discrimination laws depends on whether an individual can establish, for example, that employment was denied on the basis of his protected status, such as race, color, sex, religion, or national origin, relying on one of two theories to prove discrimination: (1) disparate treatment or (2) disparate impact. Disparate Treatment Discrimination and Criminal Records Under a disparate treatment analysis, a Title VII violation may occur when an employer treats criminal history information differently for different applicants or employees based on their race, national origin, or other protected basis. 15 For example, if evidence shows that a covered employer rejected a Hispanic applicant based on his criminal record but hired a similarly situated White applicant with a comparable criminal record, disparate treatment discrimination may have occurred. To establish that race, national origin, or other protected characteristics motivated an employer s use of criminal records in a selection process, the EEOC provides the following list of evidence that may be considered, including: 1) biased statements that could include comments that are derogatory with regard to the charging party s protected group or express "group-related stereotypes" about criminality; 2) inconsistencies in the hiring process, such as evidence that an employer requested criminal history information more often for individuals in a protected class or gave Whites, but not minorities, the opportunity to explain their criminal histories; 3) comparing individuals who are similar to the charging party in relevant respects (except for membership in protected group) to determine whether inconsistencies in treatment exist; 4) employment testing; and 5) statistical evidence derived from an examination of the employer s applicant data, workforce data, or third-party

4 criminal background history data to help determine whether the employer weighs criminal history information more heavily against members of a protected group. 16 Disparate Impact Discrimination and Criminal Records A covered employer also can be liable for violating Title VII when an employee demonstrates that the employer s neutral policy or practice has the effect of disproportionately screening out Title VII protected groups and the employer fails to demonstrate that the policy or practice is "job related for the position in question and consistent with business necessity." 17 In Griggs v. Duke Power Co., 18 the U.S. Supreme Court recognized that Title VII permits disparate impact claims. The Court explained that: [Title VII] proscribes... practices that are fair in form, but discriminatory in operation. The touchstone is business necessity. If an employment practice which operates to exclude [African Americans] cannot be shown to be related to job performance, the practice is prohibited. 19 In 1991, the U.S. Congress amended Title VII to codify this analysis of discrimination and its burden of proof. Title VII, as amended, states: An unlawful employment practice based on disparate impact is established... if a complaining party demonstrates that an employer uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin and the respondent fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity Background Check is Job-Related and Consistent With Business Necessity To establish that a criminal conduct exclusion is job-related and consistent with business necessity under Title VII, the employer needs to show that the policy operates to "effectively link specific criminal conduct, and its dangers, with the risks inherent in the duties of a particular position." 21 Two circumstances in which the EEOC believes employers will constantly meet the "job related and consistent with business necessity" defense are as follows: 1) the employer validates the criminal conduct screen for the position in question per the Uniform Guidance on

5 Employee Selection Procedures Standards (if data about criminal conduct as related to subsequent work performance is available and such validation is possible); 22 or 2) the employer develops a targeted screen considering at least the nature of the crime, the time elapsed, and the nature of the job (the three Green factors, discussed below) and then provides an opportunity for individualized assessment for people excluded by the screen to determine whether the policy as applied is job related and consistent with business necessity. 23 The EEOC refers to the three-factor test identified by the Eighth Circuit in Green v. Missouri Pacific Railroad Company 24 as the "starting point" in linking an exclusion for specific criminal conduct to a particular job. The Green factors are: (1) the nature and gravity of the offense or conduct; (2) the time elapsed since the conviction and/or completion of the sentence; and (3) the nature of the job sought or held. 25 However, the focus on the "individualized assessment" before any final decision is made is new, and presents new challenges for employers. Nature and Gravity of the Offense or Conduct The Guidance suggests that an employer assess the nature and gravity of the offense to determine whether a specific crime may be relevant to concerns about risks in a particular position. The nature of the offense or conduct may be assessed with reference to the harm caused by the crime and the legal elements of the crime. For example, the employer may want to consider whether the crime was a crime of passion, or if it resulted in a property loss versus a loss of life. If theft, a consideration would be whether the theft was with or without threat or intimidation. 26 With respect to the gravity of the crime, the EEOC urges that offenses identified as misdemeanors be considered less severe than those identified as felonies. 27 Time That Has Elapsed The EEOC notes that although the Green court did not endorse a specific timeframe for criminal conduct exclusions, the Eighth Circuit did acknowledge that permanent exclusions for all employment, based on any and all offenses, were not consistent with the business necessity standard. 28 The EEOC relies on the court s recognition that the amount of time that passed since the employee s criminal conduct occurred may be probative of the risk posed in the position in question. 29 Specifically, in the Green case, the Court determined an employer was acting in a discriminatory manner when it "follow[ed] the policy of

6 disqualifying for employment any applicant with a conviction for any crime other than a minor traffic offense." 30 This issue was examined later by the Third Circuit in El v. Southeastern Pennsylvania Transportation Authority, 31 where a 55- year-old American paratransit driver-trainee was terminated from employment when the Southwestern Pennsylvania Transportation Authority (SEPTA) learned of his conviction for second-degree murder forty years earlier. 32 The Third Circuit recognized that assessing risk is at the heart of every criminal record exclusion. It concluded that Title VII requires employers to justify criminal record exclusions by demonstrating that they "accurately distinguish between applicants [who] pose an unacceptable level of risk and those [who] do not." 33 Although the Third Circuit affirmed summary judgment for SEPTA, it stated the outcome might be different if El had an expert who testified that a criminal is no more likely to recidivate than the average person. 34 The Third Circuit reasoned that recidivism evidence disclosed by SEPTA s expert, in conjunction with the nature of the position at issue, which permitted unsupervised access to vulnerable adults, required the employer to exercise the uppermost care. 35 The EEOC concedes that an employers assessment regarding the relevant amount of time to have passed is a factual issue depending on the circumstances of each case. 36 Nature of the Job Held or Sought The Guidance notes that it is important to identify the particular jobs subject to the criminal background exclusion. Linking the criminal conduct to the essential functions of the position in question may assist an employer to "demonstrate that the challenged practice is job related for the position in question and consistent with business necessity." 37 The Griggs Court stated that the employer s burden is to show that the policy or practice "bear[s] a demonstratable relationship to successful performance of the jobs for which it was used" and "measures the person for the job and not the person in the abstract." 38 Finally, the Guidance reminds employers of the importance of identifying the particular jobs subject to exclusion based on targeted screening. 39 A factual inquiry may begin with identifying a job title, but the employer also should look at the job duties, the essential functions of the job, and the circumstances in which the job is performed, as well as where the job duties are performed. 40 Linking the criminal conduct to the essential functions of the position can assist the employer in demonstrating that the policies or practices are job-related and consistent with business necessity. 41

7 The Targeted Screen The EEOC refers to an employer s policy or practice of excluding various individuals from particular positions based on specific criminal conduct as a "targeted screen." 42 The Guidance explains that the screen should be narrowly tailored to identify criminal conduct with a "demonstrably tight nexus" to the position in question. 43 The Guidance suggests that employers approach the development of policies by taking into account the Green factors. 44 The Guidance certainly raises questions for employers trying to develop a one-size-fits-all type of criminal exclusion, such as "no felony convictions in the last ten years." Arrests Versus Conviction Records The EEOC continues its longstanding policy approach that the fact of an arrest does not establish that criminal conduct has occurred. 45 The EEOC concedes, however, that an employer may inquire into whether the conduct underlying the arrest may disqualify an individual for a particular position. 46 Convictions, on the other hand, are considered by the EEOC to constitute reliable evidence that the underlying criminal conduct occurred. 47 A Racially Balanced Workforce May Not Disprove Disparate Impact An additional consideration is that the EEOC, relying on Connecticut v. Teal, 48 states that evidence of a racially balanced workforce will not be enough to disprove disparate impact. In Teal, the Supreme Court held that a "bottom line" racial balance in the workforce does not preclude employees from establishing a prima facie case of disparate impact, nor does it provide employers a defense. The issue is whether the policy or practice deprives a disproportionate number of Title VII protected individuals of employment opportunities. 49 The Employment Application The EEOC recommends that employers not ask about convictions on job applications. Although it did not outright "ban the box," it is clear the EEOC does not look favorably at such an application question. The Guidance warns that even the question on an application may discourage people from applying for a job with an employer. 50 The Individualized Assessment The Guidance suggests that the employer provide the

8 opportunity for an "individualized assessment" to determine whether the policy, as applied, is job-related and consistent with business necessity. 51 When engaging in this individualized assessment, the EEOC directs employers to consider the following factors: 1. Individualized assessment generally means that an employer informs the individual that he or she may be excluded because of past criminal conduct; provides an opportunity for the individual to demonstrate that the exclusion does not properly apply to him or her; and considers whether the individual s additional information shows that the policy as applied is not job-related and consistent with business necessity. 2. The individual may include information that he or she was not correctly identified in the criminal record, or that the record is otherwise inaccurate. 52 The EEOC concedes that Title VII does not require individualized assessment in all circumstances. 53 The Guidance does urge employers to use individual assessments to help avoid Title VII liability. The individual assessment will allow the employer to consider more complete information on an individual applicant as part of a policy that is job-related and consistent with business necessity. 54 Relevant evidence, according to the EEOC s Guidance, includes: facts or circumstances surrounding the offense or conduct; the number of convictions; older age at the time of conviction or release from prison; evidence that the employee performed the same type of work post-conviction with the same or different employer with no incidents of criminal conduct; consistency of employment history before and after the offense or conduct; rehabilitation efforts, such as education and training; employment or character references; and whether the individual is bonded. 55 Practitioners should be aware that the Guidance suggests that even if the employer successfully demonstrates that the policy or practice is job-related for the position in question and consistent with business necessity, the Title VII plaintiff still may prevail by demonstrating 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 the policy. 56 The Guidance notes that some employers are subject to federal statutory and/or regulatory requirements that prohibit employees with criminal records from holding particular positions or engaging in certain occupations, and affirms that Title VII does not preempt federally imposed restrictions. 57 The Guidance indicates that if an employer decides to impose an exclusion that goes beyond the scope of federally imposed restrictions, "the discretionary

9 aspect of the policy would be subject to Title VII analysis." 58 States and local jurisdictions also have laws and/or regulations that restrict or prohibit the employment of individuals with records of certain criminal conduct. Unlike federal laws or regulations, state and local laws or regulations are preempted by Title VII if they "purport[ ] to require or permit the doing of any act which would be an unlawful employment practice" under Title VII. 59 Colorado s Statute Relating to Public Employment Criminal Background Checks CRS specifically relates to employment in the public sector. The statute prohibits denial of permission to apply for or obtain employment based on the fact that a person has been convicted of a felony or other offense involving moral turpitude. 60 Additionally, it prohibits anyone from applying for or receiving a license or certification or permit based on the conviction. 61 Exemptions include the employment of personnel in positions involving direct contact with vulnerable persons, the certification for peace officers, the licensure and authorizing of educators, and the employment of persons in public or private correctional facilities. 62 The Colorado statute also provides that if a state or local agency is required to make a finding that an applicant is a person of good moral character as a condition of the issuance of a license or certification, and that person has been convicted of a felony or another offense involving moral turpitude, the pertinent circumstances connected with the conviction shall be given consideration. The statute s intent is to expand employment opportunities for a person who notwithstanding the fact of conviction has been rehabilitated and is ready to accept the responsibilities of a law-abiding and productive member of society. 63 Best Practices for Employers The takeaway of the Guidance is that criminal background investigation standards must facilitate fair and consistent evaluation of all applicants. The EEOC encourages employers to develop a targeted screen that considers at least the nature of the crime, the time elapsed since the conviction, and the nature of the job. If job applications or interviewers inquire about the applicant s criminal conviction history, the employer may be required to prove it has a good business reason for seeking such information for the particular position. 64 The Guidance provides the EEOC s view of best practices for

10 employers who are considering criminal records and background information when making employment decisions. These include: 1) review background screening policies and practices in light of the new Guidance; 2) eliminate policies that impose an absolute bar to employment based on any conviction; 3) train hiring managers about appropriate use of conviction history in hiring, promotion, and separation; 4) tailor screening procedures to ensure that they are jobrelated and consistent with business necessity; 5) do not ask applicants for disclosure of convictions that are not job-related and consistent with business necessity; 6) keep information about applicants and employees conviction history confidential; and 7) make adjustments needed to the extent practices cannot be justified as job-related and consistent with business necessity. 65 Conclusion The EEOC s position may create difficulties for some employers, particularly those with a one-kind-fits-all background check policy. Going without a targeted screening, however, will make it difficult for the employer to justify a criminal background check as job-related and consistent with business necessity. Criminal background checks must be considered in conjunction with an analysis and verification of other information provided or discovered throughout either the pre-employment or employment process USC 2000e et seq. Notes 2. Equal Employment Opportunity Commission (EEOC), "Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964" (April 25, 2012) (Guidance), available at USC 2000e.

11 4. The Guidance is intended to "update and consolidate" all of the Commission s previous statements about the use of criminal records and "will supersede the Commission s previous policy statements on this issue." Guidance, Section I. Further, according to the EEOC, the Guidance "builds on longstanding court decisions and guidance that were issued over twenty years ago." Id. at Sections I and II. 5. Guidance, Section II. The EEOC asserts that the Guidance also was needed to address the 2007 decision from the Third Circuit in El v. Southeastern Pennsylvania Transportation Authority, 479 F.3d 232 (3d Cir. 2007), criticizing past EEOC guidance stating that the EEOC s guidelines "do not speak to whether an employer can take these factors into account when crafting a bright line policy, nor do they speak to whether an employer justifiably can decide that certain offenses are serious enough to warrant a lifetime ban." Id. at Additionally, the Guidance was needed to address the increasing availability and ease with which criminal background checks can be conducted and the widespread use of such checks by employers. Guidance, Section III. 6. Guidance, Section I. 7. Id. 8. Guidance, Section II, citing EEOC "Office of Legal Counsel Testimony on Arrests and Convictions," available at 9. Guidance, Section III.C. 10. Guidance, Section III.A. 11. Guidance, Section III, citing Society for Human Resource Management (SHRM), "Background Checking: Conducting Criminal Background Checks" Slide 3 (Jan. 22, 2010), available at 12. SHRM, supra note 11 at Slide 7. The survey indicated that criminal record checks are conducted for a number of reasons: to ensure a safe work environment for employees (61%); to reduce legal liability for negligent hiring (55%); to reduce/prevent theft, embezzlement, and other criminal activity (39%); to comply with applicable state law requiring a background check (e.g., daycare teachers, licensed medical practitioners) for a particular position (20%); to assess the overall trustworthiness of the job candidate (12%); or other (4%). 13. Guidance, Section III.B.1, citing SHRM, supra note 11 at

12 Slide Guidance, Section III.C USC 2000e-2(a). 16. Guidance, Section IV. 17. Guidance, Section V. 18. Griggs v. Duke Power Co., 401 U.S. 424 (1971). 19. Id. at USC 2000e-2(k)(I)(A)(i). 21. Guidance at Section V.B Id., citing 29 CFR (describing the general standards for validity studies). 23. Guidance, Section V.B Green v. Missouri Pacific R.R. Co., 523 F.2d 1290 (8th Cir. 1975). 25. Id. at Guidance, Section V.B Id. 28. Id., citing Green, supra note 24 at 1298 (the court stated that it could not "conceive of any business necessity that would automatically place every individual convicted of any offense, except a minor traffic offense in the permanent ranks of the unemployed"). 29. Guidance, Section V.B Green, supra note 24 at El, supra note 5 at Id. 33. Id.

13 34. Id. 35. Id. at Guidance, Section V.B Guidance, Section V.B.6, citing Griggs, supra note 18 at Griggs, supra note 18 at Guidance, Section V.B Id. 41. Id. 42. Id. 43. Id. 44. Id. 45. Guidance, Section V.B Id. 47. Id. at Section V.B Connecticut v. Teal, 457 U.S. 440 (1982). 49. Guidance, Section V.2, citing Teal, supra note 48 at Guidance, Section V Guidance, Section V.B Id. 53. Id. 54. Id. 55. Id. 56. Guidance, Section V.C., citing 42 USC 2000e- 2(k)(1)(A)(ii) and (C.)

14 57. Guidance, Section VI. 58. Id. 59. Guidance, Section VII, citing 42 USC 2000e CRS Id. 62. Id. 63. Id. 64. The Colorado Civil Rights Division states in its "Pre- Employment Inquiries," available at (under Publications, Brochures and Posters, Interviewing Questions) that an employer may inquire about convictions that are substantially related to the applicant s ability to perform a specific job, if the question is addressed to every applicant. 65. Guidance, Section VIII The Colorado Lawyer and Colorado Bar Association. All Rights Reserved. Material from The Colorado Lawyer provided via this World Wide Web server is protected by the copyright laws of the United States and may not be reproduced in any way or medium without permission. This material also is subject to the disclaimers at

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