BALTIMORE — Employers beware: Your prohibition on hiring job applicants with arrest or conviction records could land you in trouble with the U.S. Equal Employment Opportunity Commission.
In a new guidance to employers, job applicants and its own investigators, the EEOC states that a blanket prohibition could screen out qualified black and Hispanic job applicants, violating federal prohibitions on job discrimination based on race or national origin.
Screening applicants on the basis of criminal records has a disparate impact on minorities as they comprise a disproportionate percentage of individuals who are arrested and convicted, the EEOC said last week.
Employers should base hiring decisions on an “individualized assessment” of an applicant’s fitness for the job, and an applicant’s criminal record is relevant only if the conduct involved is “job related for the position in question,” according to the guidance.
Andrew M. Dansicker, who practices in Hunt Valley, Md., welcomed the change, saying he has represented middle-aged black employees who were rejected for management positions based on arrests or criminal convictions 20 years earlier for shoplifting or marijuana possession.
Employers “should not be able to just blanket eliminate somebody from a job [due to a criminal record] particularly where it is not recent or relevant to the job,” said Dansicker. “When you start applying those kinds of tests, you are knocking out a big percentage of the applicant pool based on something that may have no relevance to their job.”
But Greenbelt, Md., lawyer Veronica B. Nannis expressed concern that the EEOC’s guidance — by discouraging employers from conducting background checks on job candidates — might leave companies vulnerable to lawsuits flowing from a subsequent act of workplace violence.
Among the first questions an attorney alleging negligent hiring asks is whether a criminal background check was performed, said Nannis.
The enforcement guidance “makes it much more onerous for employers to deny employment based on a criminal record,” said Nannis, who has represented both employers and employees.
Even so, “it’s not as bad as it could have been from the employer’s point of view,” she added. “It could have been a blanket prohibition on background checks.”
Conduct, not criminal history
Jacqueline Berrien, who chairs the EEOC, said in a written statement that the new guidance “clarifies and updates the EEOC’s longstanding policy concerning the use of arrest and conviction records in employment.”
Earlier guidance, dating to 1987 and 1990, warned that policies excluding any job candidate with a criminal record are not necessarily job-related and may be regarded as pretexts for racial discrimination. The updated guidance states more clearly that arrest-based prohibitions can have a disparate impact on minorities and thus violate Title VII of the 1964 Civil Rights Act.
The agency undertook its review of the policies after their weight was questioned by the 3rd U.S. Circuit Court of Appeals in a 2007 case, El v. Southeastern Pennsylvania Trans. Auth. In that case, a paratransit provider for SEPTA fired a 55-year-old bus driver after a background check showed he had been convicted as a teenager, 40 years earlier, of second-degree murder in a gang-related homicide.
The 3rd Circuit sided with SEPTA, saying the existing EEOC’s guidelines did not “substantively analyze” Title VII and therefore were not entitled to “great deference.”
The new document — titled Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 — was unveiled last year and drew hundreds of comments, which were considered before it was issued April 25.
As it has in the past, the EEOC said employers who perform background checks should focus on the candidates’ conduct, rather than their criminal history.
“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,” EEOC stated. “The conduct, not the arrest, is relevant for employment purposes.”
Employers have wider latitude to reject an applicant based on a conviction, as opposed to an arrest, but again the focus should be on conduct.
“[A] record of conviction will usually serve as sufficient evidence that a person engaged in particular conduct, given the procedural safeguards associated with trial and guilty pleas,” the EEOC stated.
“As a best practice, and consistent with applicable laws, the commission 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.”
While a “best practice” is not a hard-and-fast requirement, Marc R. Engel, who advises companies on employment matters, said the guidance should serve as “a reminder to employers of the danger of acting on stereotypes.”
Hiring managers should give the job candidate a chance to explain why the criminal record should not factor into the employment decision, said Engel, who practices in Bethesda. Md.
“Do not have a one-size-fits-all policy for all positions,” he added. Hiring managers should ask themselves, “Is it really necessary for us to have a criminal background check for these positions?”
Rather than adopt a bright-line rule, the EEOC used hypothetical situations to illustrate what it would consider a conduct-based decision.
In one hypothetical, a black employee was denied a promotion because a background check had uncovered an arrest years earlier for disorderly conduct. The conduct involved a traffic stop at which the employee told the officer that the only offense involved was “driving while black.” The case was never prosecuted.
The employer defended its denial of the promotion, saying it views an arrest record as an indication of untrustworthiness or irresponsibility.
“If [the employee] filed a Title VII charge based on these facts, and disparate impact based on race were established, the EEOC would find reasonable cause to believe that his employer violated Title VII,” the commission stated.
In the other hypothetical, a school board fired a Hispanic assistant principal after he was arrested for allegedly touching female students inappropriately. Prior to the firing, the school board conducted its own investigation, during which the assistant principal said any touching was incidental to walking in a crowded hallway — an explanation the board felt was not credible.
The board would be justified in firing that assistant principal, the EEOC concluded.
“After confirming that an arrest policy would have a disparate impact based on national origin, the EEOC concludes that no discrimination occurred,” the agency stated. “The school’s policy is linked to conduct that is relevant to the particular jobs at issue, and the exclusion is made based on descriptions of the underlying conduct, not the fact of the arrest. The commission finds no reasonable cause to believe Title VII was violated.”
Engel said companies should — and are even expected to — conduct criminal background checks for jobs that involve caring for children or the elderly due to concerns about safety and financial exploitation.
“Courts are going to be a little reticent to second-guess those decisions,” he added. “There’s going to be less second-guessing because we’ve all heard horror stories.”
In its guidance, the commission cited federal data showing that blacks accounted for 28 percent of all people arrested in the United States in 2010, though they comprised only 14 percent of the general population.
Hispanics in 2008 were arrested on federal drug charges at a rate triple their proportion of the general population. Blacks and Hispanics were also more likely than whites to be arrested, convicted and sentenced for drug offenses even though whites had a similar rate of drug use, the EEOC stated.
NAACP President Benjamin Jealous said in a statement that the EEOC’s new Enforcement Guidance “will help balance the playing field for job applicants with a criminal history.
“Our criminal justice system is deeply biased against people of color and that disparity can carry over to the job search,” he stated. “These guidelines will discourage employers from discriminating against applicants who have paid their debt to society.”
– By Steve Lash