June 7, 2012

Client Alert, Written By: Susan L. Swatski

For the first time in 25 years, on April 25, 2012, the Equal Employment Opportunity Commission (“EEOC”) refined its Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act of 1964 (the “Guidance”). The Guidance advises that the mere existence of a criminal record without more should not support the wholesale exclusion of otherwise qualified people from the workforce. Under the Guidance, an employer’s use of arrest and conviction information from background checks has to be “narrowly tailored” to the specific job.

According to the National Employment Law Project in 2011, about 65 million people, or 1 in 4 Americans, have an arrest or conviction record and more than 60 percent of people in prison are people of color. As a result, the consideration of an applicant’s arrest or conviction record potentially has Title VII implications. Although the Guidance notes that having a criminal record does not create a protected status under Title VII, whether an employer’s reliance on a criminal record to deny employment violates Title VII depends on whether it is part of a claim of employment discrimination based on a protected class such as race, color, national origin etc. A claimant must prove that consideration of his/her criminal record resulted in either disparate treatment or disparate impact because of his/her protected status. Even if the employer believes that the applicant did engage in the conduct for which s/he was arrested, that information should prevent the applicant from employment only to the extent that it is evident that the applicant cannot be trusted to perform the duties of the position considering:

• the nature of the job
• the nature and seriousness of the offense
• the length of time since the offense occurred

The Guidance recommends the following “best practices” for employers:

1. do not ask about convictions on job applications, and if and when an employer makes such an inquiry, the inquiry should be limited to convictions for which exclusion would be job related for the position in question and consistent with business necessity
2. eliminate policies or practices that exclude people from employment based on any criminal record
3. develop a narrowly-tailored written policy and procedure for screening applicants and employees for criminal conduct

The Guidance is just that “guidance” and not law. Currently, there is no Federal law that clearly prohibits an employer from asking about arrest and conviction records. Some states and localities impose restrictions on the use of inquiring about criminal conduct. As a result, employers should consider the state and local laws where they operate in addition to Federal law and EEOC Guidance. Employers may also want to seek legal counsel to develop a tailored policy to screen individuals for criminal conduct in consideration of how such conduct may be job related and consistent with business necessity.

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For more information, contact the author of this Client Alert:

Susan L. Swatski, Esq.

This article provides information of general interest and is not intended, and should not be used, as a substitute for consultation with legal counsel. Any questions regarding the specific issues raised in this article should be directed to the authors or to your contacts at Hill Wallack LLP.