EEOC's Criminal Screening Policy Guidance Shows Need for Care in Vetting Job Seekers

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By Patrick Dorrian

Aug. 15 — The Equal Employment Opportunity Commission's guidance on the use of criminal arrest and conviction records in the hiring process has brought renewed attention to the questions that may be put to job applicants, and employers should take care to observe the many rules governing pre-hire inquiries, two employment law attorneys advised Aug. 14.

The purpose of the EEOC's 2012 guidance is to push questions about a job applicant's criminal history into a later phase of the hiring process, Allison Crow said during an American Law Institute webcast on pre-employment interviews and background checks.

That “seems to be the trend,” as many state and local governments have passed laws that mirror the EEOC's guidance, said Crow, an associate with management-side firm Jones Day in San Francisco.

Kay H. Hodge, who also represents employers, agreed. While the EEOC's arrest-and-conviction guidance has received most of the attention, employers also must consider state and local laws on the issue, which apply unless preempted by federal law, said Hodge, a partner with the Boston firm Stoneman, Chandler & Miller LLP.

New Jersey is the latest state to pass “ban-the-box” legislation. Twelve other states and more than 60 cities and counties have enacted similar laws.

Hiring managers “need to put on your most commonsensical hat” when conducting pre-employment inquiries, Hodge said, “because the liabilities in this area are becoming substantial.”

Guidance Targets Disparate-Impact Bias

Crow said the EEOC's guidance is derived from Title VII of the 1964 Civil Rights Act and is founded on the notion that the use of criminal arrest and conviction records in hiring has a disparate impact on blacks and other minorities, because those groups historically have had higher arrest and conviction rates than whites.

Under the guidance, which Crow stressed doesn't carry the force of law, an employer may only consider information regarding an applicant's arrest if the conduct underlying the offense indicates that the applicant would be unfit for the job in question. Further, she said, the EEOC will presume that a policy barring applicants based on a criminal conviction has an illegal adverse impact unless the employer proves otherwise.

In the EEOC's view, a pre-employment check into an applicant's criminal conviction history is permitted only to the extent that it is job-related and consistent with business necessity, Crow noted. She said even when the inquiry is job-related and consistent with business necessity, questions about convictions should be narrowly tailored and focus on the nature of the crime, the time elapsed since the crime was committed and the nature of the job.

If the questioning results in the applicant being “screened out,” she added, the EEOC guidance calls for the employer to go a step further and undertake an individualized assessment of the applicant. The applicant should get the chance to provide additional information about the circumstances of the conviction as part of that assessment, Crow said.

According to the EEOC, she said, a criminal background check policy that doesn't include the individualized assessment step is more likely to violate Title VII.

She said criminal history screening also may violate the disparate-treatment provisions of Title VII if certain questions are only asked of protected-class members, such as blacks and Hispanics.

EEOC's guidance “dovetails” with the “removing barriers to hiring” priority set in the agency's 2012 Strategic Enforcement Plan, Crow said.

The guidance applies to both private and public employees, as both groups are covered by Title VII, and the Office of Federal Contract Compliance Programs has adopted the guidance for federal contractors as well, she noted.

Questions About Race and National Origin

Apart from arrest and conviction checks, Hodge said the questions employers should and shouldn't ask job seekers vary by protected class.

For example, to avoid violating the race discrimination provisions of Title VII, she said employers shouldn't ask job applicants about their race or color; the clubs, social fraternities, societies, lodges or organizations to which they belong; the type and condition of any military discharge they received; or their credit history.

Employers also shouldn't request a photograph of the individual before extending a job offer or ask if they have any friends or relatives working for company—when used as a way to deduce the individual's race, Hodge said. However, she said it is acceptable to ask for the names of relatives or friends who work for the company or for a competitor if the goal is to identify potential conflicts of interest.

Employers may also ask about an applicant's military training or experience or membership in any professional organizations to the extent such membership would be job-related, she said.

Hodge said to avoid national origin bias claims, employers are “seriously discouraged” from asking about job seekers':

• birthplace, national origin or ancestry;

• original name (if legally changed) or national origin of name;

• “mother tongue”—the language used at home or how they learned to read, write or speak a foreign language; or

• height and weight, as certain minorities are diminutive in size.

On the other hand, she said employers may ask if the applicant is a U.S. citizen or an alien authorized to work in the U.S. They also may ask whether the applicant is physically capable of doing the job; has worked or attended school under a different name—to facilitate reference checks; and is fluent in a foreign language—to the extent such a skill is relevant to the job.

Job applications that seek disclosure of an applicant's sex may also violate Title VII unless sex is a bona fide occupational qualification. Applications that pose questions that might reveal an applicant's sex, such as asking about child care arrangements, also fall in this category, Hodge said.

In addition, employers shouldn't ask at the application stage about an individual's marital status—unless all applicants are asked—or about their spouse's job. They also shouldn't ask about the number and age of their children or any questions related to pregnancy.

Hodge said inquiries regarding religious affiliation, church or parish, religious holidays or practices observed, or the name of an applicant's pastor or religious leader likely run afoul of Title VII's religious discrimination provisions. However, employers may ask for the names of character references and whether the applicant will be able to work a special schedule such as weekends or evenings—when relevant to the job and asked of all applicants—without engaging in prohibited religious bias, she said.

Both the Age Discrimination in Employment Act and the Americans with Disabilities Act also place limits on the information an employer may seek at the job application stage, Hodge noted. Under the ADEA, for example, job advertisements may not contain terms suggesting a limit based on age or which may deter older workers from applying, such as references to “young” or “recent college graduate,” she said.

The ADA has strict limits on the medical inquiries employers may make pre- and post-offer, as well as the questions that may be asked regarding alcohol and drug use, she said. She said the law also contains the express requirement that all medical information gathered by an employer be kept confidential.