Consideration of Arrests Versus Convictions on Background Checks :
In 2012, the Equal Employment Opportunity Commission (the “EEOC” or “Commission”) drafted its’ Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (the “Guidance”), consolidating and clarifying the laws, policies, and case history regarding the use of information found in criminal background checks by employers when making employment decisions.
The Guidance addresses claims of discrimination brought under both the disparate treatment and disparate impact standards of Title VII and outlines the Commission’s understanding of the applicable law.
The Guidance also explains the Commission’s position with regard to the “business necessity” affirmative defense codified at 42 U.S.C. § 2000e-2(k)(1)(A)(i) which is available to employers in disparate impact cases. This section of the law provides that a claim of discrimination by disparate impact may be refuted by an employer demonstrating that “the challenged practice is job related for the position in question and consistent with business necessity.”
EEOC Guidance for considering arrest information.
The Guidance emphasizes that this factual basis is particularly difficult to demonstrate in instances where an employer relies on records of arrests that have not resulted in a conviction.
In Section V(B)(2) of the Guidance the EEOC states that because an arrest is not proof of criminal conduct, a record of an arrest alone “is not job related and consistent with business necessity.”
For this reason, and because such records are potentially inaccurate or incomplete, employers should not rely solely on an arrest record to exclude an applicant.
However, the EEOC’s policy does not forbid an employer from using the information contained within an applicant’s arrest record to determine that further investigation is warranted.
Any such investigation should focus on the individual’s behavior or pattern of behavior which led to the arrest.
What does this mean for employers?
Discovering that an applicant’s record includes multiple arrests for theft might not justify denying employment, but information discovered during an investigation into the conduct underlying those arrests might.
And, of course, any consideration of arrest records by an employer may also be subject to state and local laws, some of which impose more restrictions than the EEOC’s Guidance.
EEOC Guidance for considering an applicant’s conviction history
With regard to records of convictions, the EEOC’s Guidance at Section V(B)(3) acknowledges that “a record of a conviction will usually serve as evidence that a person engaged in particular conduct.” This is because a criminal conviction arises from a finding of fact made at trial or the individual’s admission of guilt.
Despite this acknowledgement, however, the Guidance still cautions employers to be aware that conviction records may contain errors or outdated data. The Commission also points out that some state laws may go beyond Title VII’s requirements when restricting the type of and timing of a criminal records request.
Thus, the Guidance advises that “as a best practice” “inquires be limited to convictions for which exclusion would be job related for the position in question and consistent with business necessity.”
Keeping this language in mind, to avoid liability under Title VII, employers should clearly define any convictions and the underlying behaviors that would render an applicant unfit to hold a specific job and narrowly craft their hiring policies to exclude only those with such convictions.