The Enforcement Guidance was issued by the Equal Employment Opportunity Commission in 2012 to assist employers with using arrest or conviction records in employment decisions. The document was meant to provide instruction when reviewing criminal records against the Civil Rights Act (also known as Title VII of the Civil Rights Act of 1964) so that employment decisions wouldn't discriminate on the basis of race, color, sex, or national origin.
Read further to learn more about the EEOC Enforcement Guidance with regard to criminal background records.
What the EEOC Enforcement Guidance Covers
Officially named Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act, the document covers five items:
- Disparate Treatment Discrimination and Criminal Records
- Disparate Impact Discrimination and Criminal Records
- Positions Subject to Federal Prohibitions or Restrictions on Individuals with Records of Certain Criminal Conduct
- Positions Subject to State and Local Prohibitions or Restrictions on Individuals with Records of Certain Criminal Conduct
- Employer Best Practices
In general, we'll be highlighting two topics: Arrest vs. Conviction Records, and Disparate Treatment and Disparate Impact Analysis under Title VII.
Arrest versus Conviction Records
The document states that an arrest record doesn't mean that "criminal conduct" has occurred. An employer cannot use an arrest record to deny employment. The exception to this rule is if the conduct surrounding the arrest "makes the individual unfit for the position in question." In other words, if the activity that led to the arrest would affect their ability to do the job, an arrest record could be considered.
A conviction, however, could be used as proof that the individual was guilty of the criminal conduct. But there may be reasons for the hiring manager to look at other evidence before making the hiring decision. The EEOC recommends an individualized assessment of the criminal records to consider the job-relatedness, nature, and gravity of the crime and the time elapsed since.
Disparate Treatment and Disparate Impact Analysis Under Title VII
The reason for the EEOC guidance is because an employer could violate the Civil Rights Act by treating criminal records "differently for different applicants or employees, based on their race or national origin (disparate treatment liability)."
If the employer does not consider how the criminal arrest or conviction relates to the job or if it's consistent with the business necessity, they could also "disproportionately impact some individuals protected under Title VII (disparate impact liability)."
The EEOC recommends that employers create a targeted screen or individualized assessment and uniform guidelines when selecting employees for certain positions. These uniform guidelines are often referred to as a decision matrix, weighing the criminal conduct against the position that is being filled.
Use of an EEOC Decision Matrix for Reviewing Criminal Records
The document concludes with examples of best practices for employers considering criminal record information on applicants. Included among the suggestions are training hiring managers, reviewing the business necessity, and eliminating deny-all policies. A deny-all policy means excluding employment for anyone with criminal records, certainly putting employers in hot water with the EEOC.
As a best practice, a decision matrix can be created for each job type, ensuring consistency among hiring managers and reducing the likelihood of discrimination. VeriFirst includes a sample decision matrix template in the link below to assist with following EEOC guidance. Please contact us if you require any assistance.