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The U.S. Equal Employment Opportunity Commission (EEOC) has released new guidance to assist employers with their policies on hiring workers with criminal records.
The guidance, Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, points out that an employer cannot refuse to hire an applicant only because the person has been arrested, since an arrest does not prove that someone engaged in a particular type of conduct.
Instead, an employer must give an applicant a chance to provide an explanation. Employers also cannot refuse to consider applications from people with criminal records unless their criminal history makes it clear that they pose a risk relative to the responsibilities required for the job.
Jan Kruchoski, CliftonLarsonAllen search principal in charge, suggests that human resources personnel carefully review the new guidelines. “Human resources staff involved in recruiting should be aware of this guidance and the risks that may occur as a result of not adhering to them. Be sure to read the guidelines carefully and find out how they relate to state and local laws.”
The EEOC states that “even where employers apply criminal record exclusions uniformly, the exclusions may still operate to disproportionately and unjustifiably exclude people of a particular race or national origin.” This may lead to a Title VII violation, unless the employer can show the applicant was not hired for job-related reasons that are consistent with “business necessity.”
While the guidance supports Title VII, federal and state courts are not bound by the guidance, or required to defer to it. However, Kruchoski believes the EEOC will rely on its guidance in administrative enforcement actions, and that some courts are likely to defer to the guidance, based on the EEOC’s role in enforcing Title VII.
The EEOC recommends that employers refrain from asking about convictions in employment applications as a best practice. Employers should only ask applicants about their criminal history when it is relevant to the position, and their questions should be limited to specific convictions that are related to the job’s duties. While there is no outright ban on criminal background checks, the guidance makes it tougher to use this information to screen applicants or make other employment decisions.
Although some state laws allow employers to make arrest record inquiries, the guidance states that an employer may not use an arrest record, by itself, to deny employment. However, employment decisions could be based on the conduct underlying the arrest.
There are 2 circumstances in which the EEOC believes employers will consistently meet the “job related and consistent with business necessity” defense:
The guidance notes that an employer who is conducting criminal background checks to comply with another federal law or regulation will not violate Title VII. The EEOC points out, though, that any screening that exceeds the scope of a federally imposed regulation might be problematic if the employer cannot provide evidence justifying the screening policy.
State and local laws do not shield employers from Title VII, because it preempts state and local laws that are in conflict with it. However, an employer may be able to claim that complying with a state law is a business necessity, as defined by the guidance.
The U.S. House of Representatives passed an appropriations bill on May 9, 2012, that provides funding for the EEOC, but blocks implementation and enforcement of key programs, including those that deal with age discrimination and the use of arrest and conviction records in pre-employment screening.
A report issued by the Senate Appropriations Committee also criticized the guidance, noting that it “may limit the ability of conscientious employers to hire with confidence and create conflict with federal and state laws.”
Developing your own company policies to ensure compliance with federal and state laws is not easy. Consult with legal and human resource professionals before creating and implementing your employment hiring policy.