A couple months ago, a client's management team asked whether I agreed with their existing practice of automatically excluding from consideration for employment all candidates with criminal records. I advised them that I could not bless such a blanket disqualification, and I counseled them about how to modify their practice going forward.

The client's inquiry, as well as my answer, were very timely. On April 25, 2012, the U.S. Equal Employment Opportunity Commission issued its "Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964." This new Guidance consolidates and supersedes the EEOC's prior policy statements regarding this issue and provides recommendations for employers to consider.

Title VII is a federal law that prohibits discrimination in employment on the basis of sex, race, color, national origin, or religion. There are two ways in which an employer's use of criminal history information may violate Title VII:

First, an employer cannot treat individuals with the same criminal records differently based on one of Title VII's protected characteristics. This is known as "disparate treatment." As an example, an employer cannot reject a Hispanic candidate based on his criminal record, but hire a similarly situated non-Hispanic candidate who has the same criminal record.

Second, an employer cannot apply a criminal record exclusion uniformly if it results in a disproportionate impact on a protected characteristic. In other words, use of such information can have the unintended effect of excluding protected classes of workers from employment opportunities. This is known as "disparate impact." Of particular note, the EEOC offers data that decisions based on criminal history information frequently have a disparate impact on African Americans and Hispanics.

What does this mean for employers?

Does this data mean that employers are now prohibited from conducting criminal background checks on job candidates or employees? No, but any employer that has a policy or practice of excluding individuals from employment based on criminal history information bears the burden of proving that such a policy or practice does not run afoul of Title VII.

This approach also requires an employer to do the following:

- An employer can validate its criminal conduct exclusion for the specific position in light of the Uniform Guidelines on Employee Selection Procedures. See 29 C.F.R. § 1607.5. However, this approach can be challenging and expensive, and as the EEOC acknowledges, data regarding the criminal conduct at issue as it relates to future work performance or behavior may be unavailable. Accordingly, this approach may be impractical for most employers.

- A more practical approach is to develop a targeted screen, and provide an opportunity for an individualized assessment to determine if the decision to disqualify the individual from employment is "job related and consistent with business necessity." This requires consideration at least the following factors when assessing whether to disqualify an individual based on criminal history information:

- The nature and gravity of the offense or conduct

- The amount of time that has passed since the offense, conduct, and/or completion of the sentence

- The nature of the job for which the individual is being considered

This approach also requires an employer to do the following:

- Notify the individual that a criminal conviction disqualifies him/her for employment.

- Give the individual an opportunity to attempt to demonstrate why he/she should not be disqualified due to particular circumstances.

- Assess whether the information provided by the individual warrants an exception to the disqualification.

Best practices

With all of that in mind, employers should consider the following "best practices," many of which are specifically identified by the EEOC in its Guidance:

Refrain from having a policy or practice that automatically disqualifies from employment individuals with any criminal record.

Train managers and other decisionmakers about Title VII and its prohibition on employment discrimination.

Identify essential job requirements and the actual circumstances under which the jobs are performed.

Determine, based on all available evidence, the specific criminal offenses that may demonstrate that an individual is not fit to perform a job.

Determine, based on all available evidence, the duration of exclusions for criminal conduct.

During the hiring process, limit inquiries concerning an individual's criminal background to those types of convictions that would be job related.

In the event an individual does have a criminal record, bear in mind that an arrest does not establish that the individual has actually engaged in criminal conduct. Accordingly, do not use an arrest record, standing alone, as a basis for denying an employment opportunity.

Provide an opportunity for an individualized assessment to determine if the decision to exclude an individual is "job related and consistent with business necessity," as described above.

Document all consultations and research considered in developing your policies and practices, as well as the justification for each employment decision.

One final word: While the EEOC's Guidance is not law, the EEOC certainly will rely on it in analyzing Title VII claims. Courts will also likely defer to the new Guidance when addressing matters brought before them. Accordingly, it would prudent for employers to assess their current policies and practices in light of the EEOC's latest policy statement.

Sheryl Jaffee Halpern, a Principal at Much Shelist, counsels clients on a wide range of employment matters. She can be reached at (312) 521-2637 or shalpern@muchshelist.com.

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