Update on the EEOC’s View of the Use of Criminal Records

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“I guess he was in the bar when a fight broke out or something like that. He wasn’t charged with a crime or convicted of anything, but the police did arrest him. Too bad—I think he’s the person we’ve been looking to hire.”
When an applicant discloses an arrest on a job application or a record of an arrest appears on the applicant’s background check, a potential employer is sometimes not quite sure what the best response is for the situation. The employer may be disappointed and not want to lose the opportunity to hire a new, promising employee. An organization that does proceed to hire the applicant has to do so while weighing the possibility of a negligent hiring claim in the future if it misjudges the applicant. If, however, the arrest is a problem for the employer and the applicant will not be hired, the employer will want to avoid creating discrimination liability when the organization rejects the applicant because of an arrest record.
The Equal Employment Opportunity Commission (EEOC) has not issued an official policy statement regarding employer use of criminal records under Title VII of the Civil Rights Act of 1964 since February of 1987. http://www.eeoc.gov/policy/docs/convict1.html
However, the EEOC recently met to discuss the topic of applicants with arrest and conviction records. No official policy statement update has yet emerged; however, after the meeting, the EEOC issued a letter to the Peace Corps. The Corps had requested clarification as to asking about criminal records on a proposed application it uses for engaging its volunteers. Although the letter response to the Peace Corps is not an official policy statement by the EEOC, it is instructive to employers. www.eeoc.gov/eeoc/foia/letters/2011/title_vii_criminal_record_peace_corps_application.html.
From the EEOC’s comments to the Peace Corps, we can learn several things applicable to other employers as well:
  • A pre-employment inquiry itself regarding criminal records does not violate Title VII. The problem of illegal discrimination arises when the information gathered is used as part of a process to screen applicants. 

    As to convictions—if an employer’s screening method has a disparate impact on a protected class—race, color or national origin, for example—then to avoid a discrimination claim, the screening policy must be job-related and consistent with business necessity. For example, if the job position open is for a bank teller, and the applicant has a record of a conviction for credit card fraud, the bank would assert as a defense to discrimination that honesty in dealing with money and finances is a job-related business necessity. 
  • “Job-related” includes the idea that the conviction should be recent enough to be “predictive of performance.” To meet this criterion, the EEOC recommended in the Peace Corps letter that a criminal history search be limited to the past seven years.
  • What about an arrest record? It is clear from the EEOC’s advisory letter that arrests are still treated differently from conviction records because convictions result from “beyond a reasonable doubt” proof or guilty pleas—both being a sufficient indication that the applicant did indeed commit a criminal act. Arrests, however, without more, prove nothing and innocence is presumed.
  • Arrest records are problematic. They can contain inaccuracies based on clerical errors or erroneous information given by the arrestee at the time of the arrest. The arrest records are also subject to state-by-state differences in how they are recorded and retained.
  • Asking an applicant about an arrest, therefore, should only be for arrests “predictive of performance” as to the open position. The EEOC recommends the applicant be given a reasonable chance to dispute the validity of the arrest record.  
Bottom Line

Use of criminal records by employers can lead to other liabilities. There has been a recent increase in the number of class action lawsuits filed against employers based on use of criminal records in employment decisions in violation of the federal Fair Credit Reporting Act (FCRA) and states’ fair employment and fair credit reporting laws. Employers would be wise to consult counsel before rejecting an applicant on the basis of an arrest or conviction.  

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