Today, most employers would agree that equal opportunity is a positive element of the American workforce. While equal opportunity laws seek to protect a person’s right to employment regardless of their age, sex, religion, or race, extensions to those laws recently reached out to protect a whole new class of people: those with criminal histories.
In recent years, the EEOC issued a policy on the consideration of arrest and conviction records in employment decisions, and the move has led many people to ask, “are criminals a protected class?”
The answer, as it turns out, is complex. Here’s what you need to know.
Criminal Discrimination Defined
Over the past several decades, federal laws have reached to protect certain people from discrimination. These protections exist in laws such as the Equal Pay Act, the Civil Rights Act, the Americans with Disabilities Act, and others.
Groups of individuals who share the characteristics of one of these categories constitute protected classes.
The Equal Employment Opportunity Commission (EEOC) is the federal agency that enforces these various laws as they relate to employment and employment-related decisions. Despite a growing interest in addressing the status of individuals with past convictions, though, federal law has not designated individuals with a criminal history as a protected class.
Nonetheless, since the 1970s, the EEOC has labeled employers’ use of criminal histories for employment decisions as a Title VII issue. Over that same period, state and local governments have taken a growing interest in employers’ use of criminal histories, too.
Hiring Applicants With Criminal Backgrounds
In 2012, the EEOC consolidated and replaced its previous policy statements with a document titled 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.
This document outlines EEOC’s position on hiring applicants with criminal backgrounds and instructs employers on the best practices for considering criminal records when making employment decisions. Many state and local entities use the procedures outlined in the EEOC guidance as a starting point for drafting their own laws and policies.
EEOC Guidance Regarding Criminal Backgrounds
The foundation for the EEOC’s interest in the use of criminal history background checks by employers in Part I and Part II of the 2012 Guidance, the Introduction and Background sections, the EEOC explains the history of and basis for its creation of the document.
The following is a summary of three critical points noted by the EEOC in the Introduction and Background sections of the Guidance:
- Employers have a continuing interest in considering criminal history information to prevent employee theft and fraud, protect against workplace violence, and avoid liability for negligent hiring. In some instances, federal, state or local laws or regulations require the use of criminal history background checks
- Employers and consumer reporting agencies can access criminal history records from various sources. However, this information is sometimes incomplete, inaccurate, or out of date. In other cases, information that has been expunged or deleted from the public record–and therefore off-limits to potential employers–remains available on private databases.
- Statistics indicate that an increasing percentage of working-age Americans have had some interaction with the criminal justice system. A 2010 study found that about one in fifteen U.S. adults had a felony conviction record. Further, the arrest and incarceration rates for African American and Hispanic men are “2 to 3 times their proportion of the general population.” Today, one in three African American males between the ages of 18 and 64 will be incarcerated at some point in their lifetime.
When and Why Title VII Applies to an Employer’s Consideration of Criminal Histories
Because the EEOC’s policy relates only to Title VII claims, an employer’s consideration of criminal histories does not fall within the EEOC’s jurisdiction unless it impacts a member of one of the Title VII protected classes.
The EEOC’s 1987 Policy Statement on the Use of Statistics in Charges Involving the Exclusion of Individuals with Conviction Records from Employment states:
“It is the Commission’s position that an employer’s policy or practice of excluding individuals from employment based on their conviction records harms Blacks and Hispanics.”
This position sets the stage for an Equal Employment Opportunity investigation whenever an employer uses conviction records to deny employment.
The EEOC’s position is not an absolute, though. This same 1987 policy statement leaves open the possibility that regional or local data may disprove the adverse impact presumption.
Additionally, a finding of adverse impact is just one factor in deciding whether an employer has committed a civil rights violation. Some critics believe that the EEOC Guidance overreaches and limits employers’ ability to make good hiring decisions. While the Guidance may change in the future, employers operating right now must continue to abide by them.
In the meantime, employers can implement a criminal history background policy that stands up to EEOC scrutiny by following the best practices outlined in the Guidance.
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DISCLAIMER: The resources provided here are for educational purposes only and do not constitute legal advice. Consult your own counsel if you have legal questions related to your specific practices and compliance with applicable laws.
