EEOC Addresses Employer's Use of Criminal Background Checks

Today, the EEOC issued an "enforcement guidance" that addresses Title VII liability arising out of an employer's use of criminal background checks.  

Of course, as the EEOC acknowledges, Title VII prohibits employment discrimination based on race, color, religion, sex, or national origin but "[h]aving a criminal record is not listed as a protected basis in Title VII."  Instead, employers can be found liable under Title VII when, for example, "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."   Most employers get this point.

The more difficult question is when will the EEOC find that an employer's reliance on criminal background checks causes a disparate impact.  The EEOC's guidance cites to FBI and other studies and finds that

African Americans and Hispanics are arrested in numbers disproportionate to their representation in the general population. In 2010, 28% of all arrests were of African Americans, even though African Americans only comprised approximately 14% of the general population. 

The EEOC also found that imprisonment rates among African Americans was between 5.6 to 10 times higher than imprisonment rates among whites.  Comparative statistics for Hispanic arrests and incarcerations are less reliable but equally troubling.

Based on these statistics, the EEOC concludes that "that criminal record exclusions have a disparate impact based on race and national origin."  There are two points to note here.  I don't dispute the statistics the EEOC relies upon, but the EEOC's adverse impact findings do not distinguish arrests from imprisonment.  Assuming neutrality, employers should be able to treat past convictions as more serious than past arrests. Also, as the EEOC acknowledges, these statistics are no substitute for actual statistics tailored to the employer's hiring pool.  The EEOC cites national statistics and if, as is usually the case, an employer does not hire from a national pool of applicants, then the employer has the right to insist on the use of accurate local data. 

But let's assume there is an adverse impact. The question at this point is whether the practice (however it is defined) is "job related for the position in question and consistent with business necessity." Discussing arrests separately from convictions, the EEOC takes the position that a blanket policy against employing (hiring or firing) individuals because of an arrest history violates Title VII: "an exclusion based on an arrest, in itself, is not job related and consistent with business necessity."  But, the EEOC also says, although "an arrest record standing alone may not be used to deny an employment opportunity, an employer may make an employment decision based on the conduct underlying the arrest if the conduct makes the individual unfit for the position in question.." So, with arrests, employers are advised to take each question individually (and, of course, make consistent decisions to avoid disparate treatment liability).

With convictions, the EEOC is a little more flexible but even here it makes the inquiry too complicated.  The EEOC does not go so far as to prohibit any questions about prior convictions.  It cautions, however, that the "best practice" is to "not ask about convictions on job applications and that, if and when they make such inquiries, the inquiries be limited to convictions for which exclusion would be job related for the position in question and consistent with business necessity."  One has to wonder whether the EEOC has ever written a job application because I'm having a hard time seeing how a job application could be written in this manner.

The EEOC also needlessly complicates the task of determining whether a past criminal conviction renders an applicant unqualified.  An employer's past conviction policy, it says, must be "tailored to the rationale for their adoption" (considering all the factors) and will "need to be narrowly tailored to identify criminal conduct with a demonstrably tight nexus to the position in question."  The EEOC never explains what it means by a "demonstrably tight nexus," much less whether this standard is the same as the business necessity standard in the statute (presumably it is).   So far as I (using Google and Lexis) can tell, the EEOC has never used this phrase for any concept.  And of all things, why adopt a confusing and potentially more demanding standard in a Guidance on the use of criminal histories.  There is just no support for this in the statute.

But while I question whether courts will adopt the EEOC's vague standard, I agree that the better practice for an employer is to never make knee jerk reactions.  Blanket exclusions, no matter what the job, are not a good idea.  But employer can adopt rational policies, especially for jobs that require the employee be put in a position of trust.  The EEOC even acknowledges that "Title VII thus does not necessarily require individualized assessment in all circumstances."

What disappoints me most of all, however, is that the EEOC did not address the kind of evidence or showing it will take for an employee to establish that there was a "less discriminatory 'alternative employment practice' that serves the employer’s legitimate goals as effectively as the challenged practice."  The EEOC should have done more than simply parrot the statute especially since, on this question, it is hard to understand how there could be a less discriminatory alternative.

Finally, the EEOC guidance acknowledges that employers will have a valid defense where federal law establishes job criteria.  As always, however, employers will need to be able to show that their decisions consistently applied these federal mandates.