U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

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1 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Charlotte District Office 129 West Trade Street, Suite 400 Charlotte, NC Intake Information Group: Intake Information Group TTY: Charlotte Status Line: (866) Direct Dial: (704) TTY (704) FAX (704) Stephanie M. Jones Senior Trial Attorney CTDO Direct Dial: Website: The New EEOC Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII, updated April 25, 2012 Acknowledges importance of disparate treatment Reiterates that the fact of an arrest, standing alone, does not establish that criminal conduct occurred, but that in some circumstances an arrest may prompt an inquiry into whether the underlying conduct justifies an adverse employment action. Explains how employers can defend against disparate impact challenges analyzes law, provides detailed guidance Responds to employer questions Why did the EEOC Update its Policy Statements Now? Federal, State and local government s emphasis on reentry of convicted felons into the working environment More working-age people have criminal records, especially African Americans and Hispanics One in 87 working-aged white men is in prison or jail, compared with 1 in 36 Hispanic men and 1 in 12 African American men. Criminal background checks have become more popular as a tool to screen job applicants. 90% of companies report using checks for hiring decisions; obvious pressure to protect other employees, property, assets & reputation. Generally, for-profit companies (i.e. LexisNexis) offer the service, checking Government-held records Criminal information is widely available: Internet and consumer reporting agencies Fair Credit Reporting Act Most employers now do criminal background checks for some or all jobs Avoiding exposure to negligent hiring liability Reducing the risk of violence, theft, or fraud Complying with federal laws requiring background checks and exclusions Complying with state laws requiring background checks and exclusions Legal Developments under Title VII

2 EEOC s View of Employer Best Practices as it relates to the consideration of Arrest and Conviction Records in Employment Decisions Eliminate blanket exclusions/policies that automatically exclude individuals based on any criminal record Develop narrowly tailored written policy/procedures excluding individuals from particular jobs based on a criminal history record 1) Identify essential job requirements 2) Identify specific offenses tied to unfitness for job 3) Identify time limits applicable to exclusion 4) Document research/consultations to support policy/procedures 5) Provide for individualized assessment before final hiring decision When asking questions about criminal records, limit inquiries to records job related/consistent with business necessity Make inquiries of criminal record post application (e.g. ban the box approach) Train managers, hiring officials, and decision-makers on how to implement the policy and procedures consistent with Title VII Maintain confidentiality of criminal records Centralize decision making about where a criminal record is an exclusion Remember, the Commission encourages the use of individualized assessments because they can help employers avoid Title VII liability by allowing them to consider more complete, and at times, more accurate information about an individual s criminal history, as part of a policy that is job related and consistent with business necessity as applied. 2

3 How Do Criminal History Records Create a Title VII Issue? Title VII of the Civil Rights Act of 1964, as amended, prohibits employment discrimination based on race, color, religion, sex, or national origin. o Title VII disparate treatment o Title VII disparate impact Disparate Treatment Discrimination The EEOC s Guidance Does Not Change Prior Approach Candidates in protected categories cannot be treated differently based on comparable criminal records Caution against stereotyped thinking Typical evidence the EEOC will look for in disparate treatment case: Biased Statements Inconsistencies in hiring processes (e.g. more criminal record information requested of those in a protected group) Similarly situated comparators Statistical evidence that suggests employer counts criminal record more heavily against members of a protected group Disparate Impact Discrimination Complaining party shows that employer uses a particular criminal record exclusion policy or practice... That causes a disparate impact... and Employer shows that the exclusion is job related for the position in question and consistent with business necessity OR Complaining party shows that there was a less discriminatory alternative and the employer refused to adopt it. Factors that Impact Disparate Impact Analysis: Internal statistics (The company s internal data) External Statistics (National and Local) Conviction versus Incarceration Data Geography Diversity of workforce Size of employer Single establishment versus nationwide scope 3 Where to look for Statistical Evidence of Disparate Impact Pre-employment stage -Screening -Chilling Effect of Number of

4 Applicants -Most likely no records Application stage -Electronic and/or hard copy applicant flow data or lack thereof Post hire/selection or conditional offer stage -Look at the discharge data Promotion stage Statistical analyses should recognize that results can vary by geography and job. If Disparate Impact, then ask: is policy job related and consistent with business necessity? In the Enforcement Guidance, the Commission states that there are two circumstances in which it believes employers will consistently meet the job related and consistent with business necessity standard. EEOC s Guidelines for Business Necessity Defense: 1. Employer must validate the criminal conduct screen against by 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) or 2. Targeted Screen The targeted screen is two prong: The Starting Point the three Green Factors 1 (nature of the crime, the time elapsed between the crime and the present, and the nature of the job) and then Provide an opportunity for an 1 See Green v. Missouri Pacific Railroad, 523 F.2d 1290 (8 th Cir. 1975) and 549 F.2d 1158, 1160 (8th Cir. 1977). Buck Green, an African American Vietnam-era conscientious objector excluded by a blanket exclusion from working for the Missouri Pacific Railroad. 4

5 5 Individualized Assessment before the employer acts based on the results of the targeted screen. Factors to Consider for Individual Assessment: The Commission recommends employers consider the following factors in addition to three Green Factors: The facts or 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; Evidence that the individual performed the same type of work, post-conviction, with the same or a different employer, with no known incidents of criminal conduct; The length and consistency of employment history before and after the offense or conduct; Rehabilitation efforts, e.g., education and training; Employment or character reference or any other information regarding fitness for the particular position; and Whether the individual is bonded under a federal, state or local bonding program. Targeted Screen Solely under Green Without Individualized Assessment: Such a screen would need to be narrowly tailored to identify criminal conduct with a demonstrably tight nexus to the position in question. The employer needs to show that the policy operates to effectively link specific criminal conduct, and its dangers, with the risks

6 inherent in the duties of a particular position. Individualized Assessment: Process If conducted, the employer should: (1) inform the applicant that he or she may be excluded based on the past criminal conduct; (2) provide an opportunity to the individual to establish that the exclusion should not apply; (3) and consider whether the individualized assessment shows that the policy should not be applied to the applicant Individualized Assessment: Information to collect Information about the inaccuracy of his/her criminal record, for example. Mistaken identity Inaccurate reporting Age at the time of conviction: younger vs. older Consistency, quality, and length of employment history before and after the offense or conduct Rehabilitation efforts (e.g., education/training), and Employment/character references regarding fitness, among other factors. Less Discriminatory Alternative Under Title VII, even if an employer successfully demonstrates that its policy or practice is job related for the position in question and consistent with business necessity, a plaintiff may still 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. 42 U.S.C (k)(1)(A)(ii), (C). 6

7 This is a fact-specific inquiry that will depend on the facts and circumstances of each case. 7

8 Additional Information For additional information about the topics discussed during the presentation, please reference the following sites: Enforcement Guidance: Qs and As: What You Should Know Fact Sheet: Devah Pager, The Mark of a Criminal Record, 108 Am. J. Soc. 937, 958, Figure 6 (2003), 8

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