EEOC Lawyers Discuss Misconceptions, Guidance About Criminal History Checks

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By Lydell C. Bridgeford  


Having a criminal record in itself does not grant someone protected status under Title VII of the 1964 Civil Rights Act, but the use of criminal records “can get employers in trouble” under disparate impact and treatment analyses, an Equal Employment Opportunity Commission attorney said at a July 17 workshop.

Speaker Tanisha Wilburn is a senior attorney adviser at the commission's Office of Legal Counsel, and the event was offered by the EEOC Training Institute and the Washington field office.

Wilburn said disparate treatment discrimination can play out in the context of criminal records “when an employer rejects black or Hispanic applicants because of their criminal record, but then hires white applicants with similar criminal records and job qualifications.”

Wilburn was a member of the team that revised the commission's enforcement guidance on use of arrest and conviction records in employment, released in April 2012 (80 DLR A-1, 4/25/12).

She said EEOC views the enforcement guidance on criminal background checks as a tool to eliminate barriers in recruitment and hiring for protected groups, which was a priority cited in its strategic enforcement plan adopted in December 2012 (243 DLR A-1, 12/18/12).

Citing 42 U.S.C. § 2000e-2(k)(1)(A)(i), Wilburn explained that disparate impact discrimination occurs when an employer has a neutral policy or practice that disproportionately screens out or disadvantages Title VII-protected individuals, does not relate to the job in question, and is not consistent with a business necessity. This type of discrimination may arise from background checks, she said.

“The criminal record policy can be neutral on its face in terms of protected groups. However, the policy will require all new hires to be conviction-free or have a clean background or no felony record. That is what you will see in these screening records policies,” Wilburn said.

Areas Subject to Criminal Record Scrutiny

In assessing the application stage of a particular employer's hiring process as it relates to a disparate impact claim, the agency will study the employer's electronic and hard copy applicant flow data, EEOC's Edward Loughlin said. He is a trial attorney with the commission's Washington, D.C., field office.

Loughlin stressed that the federal laws EEOC enforces impose a recordkeeping requirement on employers. Investigators rely on EEOC's mathematicians to “crunch the statistics and show them where there are gaps in the data” that may suggest disparate impact, he said.

To enforce the guidance on criminal background checks, the agency will also consider how employers are using the checks on their current employees, Loughlin added. For example, he said, an investigation of post-hire-stage decisions will determine whether the employer is discharging individuals of a particular race or gender.

He noted that some employers conduct criminal background checks on workers who are slated for promotions. An employer may not have conducted the checks when the candidate for promotion was hired, but started to implement the checks afterwards, Loughlin observed.

The results from a criminal background check can lead to the employee not only losing out on the promotion, but also being fired, he said. In addition, companies that acquire another business and require the employees of the new company to reapply for their jobs and undergo a criminal background check may decide not to hire some workers based on their criminal history, Loughlin said.

Under these situations, EEOC is “looking at data to see if there is a statistical difference that will support a disparate impact claim,” he added.

Several factors can affect a statistical analysis on disparate impact related to criminal background checks, Loughlin said, including internal statistics on applicant data, external statistics on national and local workforce data, the demographics of the state, diversity of the workforce, and size of the employer.

Other factors that may affect a disparate impact analysis on the use of criminal records in employment decisions are whether a multistate employer is applying the policy consistently among its single establishments, and the comparison of conviction data with incarceration figures, he said.

Loughlin explained that a job applicant or employee may have been arrested, but a jury or judge found the person not guilty. However, the person was incarcerated the entire time because the individual was unable to pay for bail. Criminal history records may indicate that incarceration, he said.

Debunking Misconceptions on Guidance

Wilburn also addressed three misconceptions that have emerged in the media, especially in editorials, about the guidance. For example, she challenged the notion that the agency is restricting employers from obtaining or using criminal records to screen its applicants and employees. She stressed that the guidance does not prohibit employers from using criminal history when making employment decisions.

Another inaccurate interpretation about the guidance Wilburn said she has heard is that employers are required to hire job applicants with criminal records who are unsuitable for certain jobs. She said the guidance “does not require companies to hire anyone,” but simply “advises employers how they can avoid Title VII liability if they use applicants' or employees' criminal records to make employment decisions.”

The third misconception she cited is that the policy imposes new Title VII requirements on employers. Applying Title VII analysis to the use of criminal records in employment decisions is well-established at the commission, according to Wilburn.

In 1969, she said, EEOC started resolving charges involving the use of criminal records in employment decisions. A year later, “federal courts began analyzing this issue using Title VII analysis,” Wilburn added. From 1969 to 1980, the commission had issued about 90 private-sector decisions on charges involving the use of criminal records in employment decisions, she said.

In 1987 and 1990, the commission released three policy statements on this issue explaining the Title VII analysis, Wilburn said. “The truth of the matter is that the EEOC has been applying Title VII analysis to the use of criminal records for a long time.”

The agency decided to update the guidance, in part, because of several legal and social developments that had occurred since the agency released the 1987 and 1990 documents, Wilburn said.

“Now, there are many more working-age people with criminal records and that has coincided with the use of criminal records in employment decisions, so it was important for the commission to reflect that development,” Wilburn said. In addition, she said, the old policies failed to reflect the passage of the Civil Rights Act of 1991, which codified the disparate impact analysis.

The updated document provides more legal analysis and examples for employers, job applicants, and employees, Wilburn said. She recommended that employers, if possible, “wait to ask about convictions until later in the selection process and limit inquiries to convictions that are most relevant to the job in question.”

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