On April 25, 2012, the Equal Employment Opportunity Commission (“EEOC”) approved updated enforcement guidance which clarifies that criminal record information obtained from applicants during background checks cannot be used to screen potential or current employees under Title VII of the Civil Rights Act of 1964 (“Title VII”) unless the conviction is job-related.  The new guidance consolidates and supersedes the EEOC’s 1987 and 1990 policy documents on the issue.

The EEOC approved its updated policy by a 4-1 vote, stating that although Title VII does not ban the use of criminal background checks, employers may violate Title VII if (1) their polices adversely impact a disproportionate number of individuals based on a protected characteristic and are not “job related and consistent with business necessity” or (2) if they intentionally discriminate among individuals with similar criminal histories.

Democratic EEOC Commissioner Stuart Ishimaru said the new guidance contains “nothing new” from a policy perspective, and simply expands the EEOC’s views regarding employers’ use of arrest and conviction records given technological changes in hiring and employment as well as employers’ increasing use of background checks.  However, Republican EEOC Commissioner Constance Barker, who cast the sole dissenting vote, argued that the new guidance exceeds the EEOC’s authority because it places obligations on employers not required by Title VII.

How the Enforcement Guidance Differs from the EEOC’s Earlier Policy Statements

The new guidance provides more in-depth analysis compared to the 1987 and 1990 policy documents in several respects.  First, the new guidance discusses disparate treatment analysis in more detail and gives examples of situations where applicants with the same qualifications and criminal records are treated differently because of their race or national origin in violation of Title VII.

Second, the new guidance explains the legal origin of the disparate impact analysis, starting with the U.S. Supreme Court’s decision in Griggs v. Duke Power Co., 401 U.S. 424 (1971) and then continuing to subsequent Supreme Court decisions, the Civil Rights Act of 1991 (which codified disparate impact) and the Third and Eighth Circuit Court of Appeals’ decisions applying disparate impact analysis to criminal record exclusions.

The new guidance also explains more fully how the EEOC analyzes an employer’s “job related and consistent with business necessity” defense for criminal record exclusions.  Specifically, the EEOC states employers may consistently meet the defense when the employer validates the criminal conduct exclusion for the position in question in light of the Uniform Guidelines on Employee Selection Procedures (if there is data or analysis about criminal conduct as related to subsequent work performance or behaviors). 

Employers may also meet the business necessity defense by developing a targeted screening process which considers the nature of the crime, the time elapsed, and the nature of the job.  The targeted screening policy provides an opportunity for an “individualized assessment” of those people identified by the screen and allows employers to determine if the policy as applied is job related and consistent with business necessity.  The EEOC notes that although individualized assessment is not required in all circumstances, the use of screening that does not include individualized assessment is more likely to violate Title VII.

Therefore, we recommend that you review your criminal background screening procedure and how you determine whether or not to hire an individual based on screening results.  You should not implement a policy or procedure that creates an absolute bar to employment based on the fact that an individual has a conviction or arrest record.  Instead, you should tailor your screening policy to exclude only those individuals with convictions that are related to the job at issue and that would prevent them from safely and efficiently performing in the position.

The EEOC also notes that federal laws and regulations that restrict or prohibit employers from employing individuals with certain criminal records for specific positions are a defense to a Title VII claim.

As to the instigation behind the changes, the EEOC stated that it began to re-evaluate its old policy statements after the Third Circuit Court of Appeals noted in El v. Southeastern Pennsylvania Transp. Auth., 479 F.3d 232 (3d Cir. 2007) that the EEOC should provide in-depth legal analysis and updated research on the issue.

The attorneys at Taft will keep you posted of new developments regarding the EEOC’s updated enforcement guidance and are available to help you with questions or concerns you may have.

The text of the EEOC’s enforcement guidance is available here and and the EEOC’s question and answer sheet is available here.