Using Arrest and Conviction Records When Making Employment Decisions
Employers who use criminal background investigations to screen applicants for arrest and/or convictions need to be careful. Even if no formal investigation of criminal background is conducted, screening applicants' backgrounds creates legal issues for employers. Refusing to hire, or making employment decisions based on arrests or convictions, can violate Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. which prohibits discrimination based on certain traits, such as race. Luckily, the federal agency responsible for enforcing Title VII recently has published guidelines which give employers a basic roadmap to follow when hiring new personnel.
On April 12, 2012, the Equal Employment Opportunity Commission (EEOC) 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, as amended, 42 U.S.C. § 2000(e) et seq." (Guidance). The Guidance is meant to consolidate and update the EEOC's position regarding the use of arrest and conviction records under Title VII. Employers who use background investigations (e.g. criminal background check) to screen applicants need to be careful when using that information in making employment decisions. These concerns are especially significant in the current economic climate in which employers can be flooded with applications and/or resumes.
Title VII generally prohibits discrimination based on traits such as race, gender, religion and national origin. Discrimination can take two forms:
disparate treatment (or intentional discrimination) and disparate impact (unintentional consequences). Disparate treatment is intentional discrimination if it stems from a refusal to employ a person based on a protected trait (e.g. refusing to hire African Americans). Disparate impact occurs when a facially-neutral employment practice disproportionately impacts a protected group (e.g. employer who only hires persons six-foot three and taller disproportionately impacts women). Title VII does not make arrestees or convicts a protected class of individuals. However, using arrest or conviction records in making employment decisions could still run afoul of Title VII's prohibitions.
The EEOC cited statistics showing that Hispanics and African Americans are arrested in numbers disproportionate to their representation in the general population. The same holds true in the incarceration rates for those two groups. Thus, the Guidance is designed to eliminate discrimination against those two groups when arrest and conviction records are used in the employment screening process.
Using arrest or conviction records to screen employees could result in intentional discrimination. For instance, an employer who hires White males who have prior convictions, but not African American males, could be liable. Title VII prohibits stereotypical thinking – that is, linking certain groups to criminal behavior. For example, if a White male and Hispanic male both have drug convictions, and the White male is hired, but not the Hispanic, the employer may
believe that the latter's conviction is for a more serious drug offense than the former's, creating a standard that automatically excludes Hispanic hires.
Title VII also prohibits neutral employment practices that have a disparate impact on a protected group where the employer cannot demonstrate that the employment practice is job related. For instance, refusing to hire anyone with a prior felony conviction without regard to the nature of the crime or the age of the conviction may have as disparate impact on African Americans and Hispanics as a result of the statistics described above. In order for the employer to show that its criminal background screening is job related, factors such as the nature and gravity of the offense, the age of the offense or conduct, and the nature of the job, should be considered.
Employers who conduct criminal background investigations must be sure to distinguish between "arrests" and "convictions." An arrest is not proof of criminal conduct. An employer's refusal to hire someone based solely on an arrest is not a job-related qualification. Such a practice may have disparate impact on African Americans. Using the fact of an arrest also violates section 2-103(a) of the Illinois Human Rights Act (775 ILCS 5/2-103) (Act). However, an employer can look at the conduct underlying the arrest to determine the employee's fitness for the position. This is allowed under section 2-103(b) of the Act. For instance, an employer may investigate the circumstances of the arrest by interviewing the employee and others and letting the employee tell his side of the story. This process is a more legitimate way of screening potential employee behavior.
If an employer uses criminal convictions as an exclusionary factor, the EEOC recommends
implementing a policy that links specific criminal conduct, and its dangers, with the risks inherent in a particular job. One way to do this is to develop a targeted screening process that considers the nature of the crime, the age of the conviction, and the nature of the job, and provide an opportunity for an "individualized assessment" for people excluded by the screen to determine if the policy as applied is job related. Under the "individualized assessment," the applicant would be given an opportunity to explain his conviction to the employer. For instance, a policy that rejects all applicants with a conviction would not be a narrowly tailored policy because not all convictions pose a risk to the employer. A policy that limits convictions to thefts that are no more than four years old is more narrowly tailored, especially if the employer's business involves access to personal financial information. The employer should allow the applicant to explain the circumstances of the conviction to see if mitigating factors exist. Even if such a policy has a disparate impact, the policy is job related and consistent with business necessity – an employer runs the risk of having personal financial information accessed by someone convicted of a crime involving deceit, such as theft.
In sum, the EEOC recommends developing narrowly tailored policies and procedures for screening applicants and employees for criminal conduct. This entails identifying the essential job requirements, specific criminal offenses that may demonstrate unfitness for a particular job, the age of the offense and creating an individualized assessment as a further screening mechanism. This reduces the risk that an employer's policies have a disparate impact on a protected group. If you currently use arrest and/or conviction records to screen applicants or to make other employment decisions, please contact Donald S. Rothschild or Brian M. Dougherty to discuss your current policies, how those policies need to be amended to comply with the Guidance, or to review your employment practices with respect to screening applicants for employment.