As promised in a previous post, the Equal Employment Opportunity Commission (EEOC) recently issued new Enforcement Guidance concerning the use of arrest and conviction records in employment decisions under Title VII of the Civil Rights Act of 1964, as amended.
The EEOC decided to update its policy statements after twenty-plus years because the rise of technology has made criminal history information “much more accessible to employers,” plus the Third Circuit Court of Appeals in its 2007 El v. Southeastern Pennsylvania Transp. Authority decision basically stated that the then-current EEOC guidance didn’t thoroughly analyze Title VII and should not be given great deference. 479 F.3d 232 (3rd Cir. 2007).
While the EEOC has not changed its fundamental positions on criminal record exclusions, the new Enforcement Guidance differs from its earlier policy statements in several ways, including a more in- depth discussion of disparate treatment analysis, examples, and an explanation of the legal origin of disparate impact analysis. The Guidance also provides a much-needed explanation of the EEOC’s analysis of the “job related and consistent with business necessity” standard for criminal record exclusions and hypothetical examples interpreting the standard.
Of particular significance to employers: the circumstances in which the EEOC says the “job related and consistent with business necessity” defense can be met. The relevant circumstance to most employers requires the employer to develop a targeted screen that considers the familiar factors (nature of the crime, the time elapsed, and the nature of the job in question); and then provides an opportunity for an individualized assessment for those people identified in the screen to determine if the policy as applied is job related and consistent with business necessity.
The final section of the new Guidance provides “Best Practices” for employers considering criminal record information during the hiring process. According to the EEOC, employer best practices include:
- eliminating policies or practices that exclude people from employment based on any criminal record;
- developing a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct; and
- limiting questions about criminal records to those for which exclusion would be job-related for the position in question and consistent with business necessity.