The New EEOC Guidance

It has been talked about by the HR Community now for months, and it has arrived.   The New EEOC Guidance which was voted in by The Equal Employment Opportunity Commission by a 4-1 vote.   Duly noted are Commissioner Barker’s comments on her rejection to vote for the guidance without a public comment period. Commissioner Barker stated “There is absolutely no justification for totally excluding the American people from this process or for this blatant failure to be transparent in how we conduct our business. I am devoted to the issue of civil rights and to the work of this Commission, but if we vote to approve this Guidance today, how can we expect the American people to have confidence that this agency operates openly and with full transparency?  We are public servants.  We work for the American people.  What could possibly justify keeping them from knowing what is in this document before we approve it?”  

Although this is guidance for employers to comply with Title VII, the nexus of the guidance is to guide employers to avoid disparate impact, not to have blanket exclusions against hiring individuals with criminal records, and review each criminal record where a hiring decision will be made case by case.  The new guidance suggests an individualized assessment where applicable with some records (inquire further with the applicant or employee). The guidance was issued to provide clarity to the previous guidance from 1987 and recommended that before using criminal history information, employers must take into consideration the following to demonstrate business necessity:

• the nature and gravity of the offense or offenses;
• the time that has passed since the conviction and/or completion of the sentence; and
• the nature of the job held or sought.

Aurico believes that employers will conform to the guidance by following the best practices provided by the EEOC and although there may be changes to employer existing policies and processes, these policies are not too burdensome.  It is our recommendation that employers seek legal advice when putting together policies and procedures to conform to the guidelines.


The New Enforcement Guidance in Detail
Attached is a link to the revised 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 is effective immediately.

One key factor the Commission is recommending that employers should prior to disqualifying an individual with a criminal record from employment, the employer should conduct an individualized assessment by engaging with that individual.


Criminal Records Required by Federal Law/Regulation
The Guidance indicates that employers would not violate Title VII if they determine an applicant is disqualified based on the criminal record following a federal requirement which places, restrictions on the employment of persons. On the other hand State restrictions do not preempt Title VII and employers may not defend a decision to disqualify an individual solely on State restrictions.


Job related and consistent with business necessity-Targeted screen
Two circumstances in which the Commission suggests employers will consistently meet the “job related and consistent with business necessity” defense are as follows:

• The employer validates the criminal conduct screen for the position in question per the The Uniform Guidelines on Employee Selection Procedures Standards (If data about criminal conduct as related to subsequent work performance is available and such validation is possible); or
• The employer develops a targeted screen considering at least the nature of the crime, the time elapsed, and the nature of the job, and then provides an opportunity for an individualized assessment for people excluded by the screen to determine whether the policy as applied is job related and consistent with business necessity. 

Individualized Assessment

The Guidance lists eight possible topics of consideration in an individualized assessment, as listed below:

• The facts and circumstances surrounding the offense or conduct
• Evidence that the individual performed the same type of work, post-conviction, with the same or a different employer, with no known incidents of criminal conduct
• Employment or character references and other information regarding the individual’s fitness for the particular position
• The number of offenses for which the individual was convicted
• Older age at the time of conviction, or release from prison
• The length and consistency of employment history before and after the offense or conduct
• Rehabilitation efforts, e.g., education/training
• Whether the individual is bonded under a federal, state, or local bonding program.

The Guidance states that if the individual does not respond to the employer’s inquiries, the employer may make its decision without the information.


Arrest Record Requires Inquiry into Conduct Alleged
Individuals are “presumed innocent unless proven guilty;” thus, the Guidance says, the “arrest record standing alone may not be used to deny an employment opportunity.” However, the Guidance allows an employer to make an employment decision based on the conduct underlying the arrest if the individual would be unfit for the position because of the conduct. As illustration, the Guidance uses the situation in which an elementary school assistant principal is arrested after several young girls reported the assistant principal of inappropriate touching. School policy permits terminating employees who engage in conduct that impact the health and safety of students. The assistant principal denies committing inappropriate conduct, but the school finds the denial not credible. The school terminates his employment. In this situation, the EEOC would find no violation of Title VII because the school’s policy is linked to conduct relevant to the job and the decision is based on the underlying conduct.


Other Relevant Points
The Guidance finds that applicants that are discouraged from applying for a job because the employer has a rule for excluding individuals would have a cause for action under Title VII.

As a “best practice,” the Guidance recommends that employers 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.

The Guidance indicates that an employer best practice when narrowly tailoring their policies linking the criminal conduct to the essential functions of the position in question may assist an employer in demonstrating that its policy or practice is job related and consistent with business necessity because it “bears(s)” a demonstrable relationship to successful performance of the jobs for which it was used.


Recommended Best practices for Employers to adopt
Per the EEOC, the following are examples of best practices for employers who 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 it prohibition on employment discrimination.

Developing a Policy

1. Develop a narrowly tailored written policy and procedures for screening for criminal records
2. Identify essential job requirements and the actual circumstances under which the jobs are performed (work off of existing job descriptions and essential functions of the job).
3. Determine the specific offenses that may demonstrate unfitness for performing such jobs.
• Review the criminal offenses for which you will be making a hiring decision with all available evidence.
4. Determine the duration of exclusions for criminal conduct based on all available evidence.
   • Include an individualized assessment where applicable (not necessary in all cases).
5. Record the justification for the policy and procedures.
6. Note and keep a record of consultations and research considered in crafting policies and procedures.
7. Train managers, hiring officials, and decision makers on how to implement the policy and procedures consistent with Title VII.

Questions about Criminal Records
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.


Confidentiality
Keep information about applicants and employees criminal records confident.  Only use it for the purpose for which it was intended.


Next Steps
Aurico encourages all clients to seek experienced legal counsel to assist you in addressing this guidance.  Aurico is hosting a Webinar scheduled for Tuesday May 1, 2012, giving an overview of the litigation.  Please contact Aurico for details on this free session.

As a reminder, Aurico offers file retrieval for criminal records requiring more in-depth analysis.  Please contact Aurico for more information on this service.

Information sourced from:
EEOC Enforcement Guidance