The last 20 years have witnessed a significant increase in the number of Americans who had contact with the criminal justice system, and correspondingly, a significant increase in the number of people with criminal records in the working-age population. In fact, according to the Bureau of Justice Statistics, if incarceration rates do not decrease, approximately 6.6% of all persons born in the United States in 2001 will serve time in state or federal prison during their lifetimes, with arrest and incarceration rates particularly high for African-American and Hispanic men. As a result, employers have increasingly been forced to deal with consideration of arrest and convictions records when making hiring and other employment decisions.

Federal court decisions and guidance from government agencies have established that an employer’s consideration of arrest and conviction records can constitute a violation of Title VII of the Civil Rights Act of 1964, as amended, in two circumstances:

1. An employer is liable for violating Title VII when an individual demonstrates that the employer treated the individual differently because of the individual’s race, national origin, or another protected basis. For example, an employer may be subject to disparate treatment liability under Title VII where the evidence shows that a covered employer rejected an African-American applicant based on his criminal record, but hired a similarly situated white applicant with a comparable criminal record.
2. An employer violates Title VII where the evidence shows that a covered employer’s criminal record screening policy or practice disproportionately screens out a group protected by Title VII, and the employer does not demonstrate that the policy or practice is job-related for the positions in question and consistent with business necessity.

On April 26, 2012, the Equal Employment Opportunity Commission (EEOC) issued its much anticipated Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 (The Guidance), building on longstanding court decisions and policy documents that have been issued over the past 20 years. The Guidance focuses on employment discrimination based on race and national origin, and the differences between arrest and conviction records.

The EEOC takes the position that an arrest does not establish that criminal conduct has occurred, and an exclusion based on an arrest, in itself, is not job-related and consistent with business necessity. An employer may make an employment decision based on the conduct underlying an arrest, however, if the conduct makes the individual unfit for the position in question. In contrast, a conviction record will usually serve as sufficient evidence that a person engaged in the particular conduct that lead to the conviction. In certain circumstances, however, there may be reasons for an employer not to rely on the conviction record alone when making an employment decision.

The EEOC also identifies two circumstances in which it believes employers will consistently meet the “job-related and consistent with business necessity” defense: (1) when the employer validates the criminal conduct exclusion for the position in question in light of the Uniform Guidelines on Employee Selection Procedures (if there is data or analysis about criminal conduct as related to subsequent work performance or behaviors); and (2) where the employer develops a targeted screening program that considers at least the nature of the crime, the time elapsed since the crime, and the nature of the job to be performed. The employer’s policy must provide an opportunity for an individualized assessment for those people identified by the screen, to determine if the screening policy, as applied, is job-related and consistent with business necessity.

The Guidance concludes with the EEOC’s adoption of “best practices for employers” that are considering criminal record information when making employment decisions:

• Eliminate policies or practices that exclude people from employment based on any criminal record. 
• Train managers, hiring officials, and decision-makers about Title VII and its prohibition on employment discrimination. 
• Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct. 
• Identify essential job requirements and the actual circumstances under which the jobs are performed. 
• Determine the specific offenses that may demonstrate unfitness for performing such jobs based on all available evidence. 
• Determine the duration of exclusions for criminal conduct based on all available evidence, including an individualized assessment. 
• Record the justification for the policy and procedures. 
• Note and keep a record of consultations and research considered in crafting the policy and procedures. 
• Train managers, hiring officials, and decision-makers on how to implement the policy and procedures consistent with Title VII. 
• When asking questions about criminal records, limit inquiries to records for which exclusion would be job-related for the position in question and consistent with business necessity. 
• Keep information about applicants’ and employees’ criminal records confidential. Only use it for the purpose for which it was intended.

Employers will likely see job applicants with criminal backgrounds, whether related to an arrest or conviction. Employers should conform their hiring practices to adhere to the Guidance issued by the EEOC to better ensure that such practices do not run afoul of Title VII.

As seen in The State Journal.