Consideration Of Criminal History Information In Employer Decision-Making Under Title VII
As a matter of routine practice, many employers require job applicants to complete a Criminal History Background form when applying for a job or once a tentative offer of employment has been made. Although there is nothing unlawful about making the request or gathering such information, employers must be very careful not to use the information in a manner which could be considered discriminatory.
| Posted in Legal on Jun 7, 2012 by
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On April 25, 2012, the Equal Employment Opportunity Commission issued its Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act of 1964. Although the use of arrest and conviction records when making employment decisions is not a new issue, there can be no doubt that such information is more accessible to employers today than it was even ten years ago. Employers today, for example, can hire companies to perform criminal background checks or can simply spend a few hours on a computer and conduct one of their own. In addition, according to the EEOC, in the last twenty years, there has been a significant increase in the number of Americans who have had contact with the criminal justice system and, concomitantly, a major increase in the number of people with criminal records in the working-age population. Between 1991 and 2007, the percentage of adults who had served time in prison has nearly doubled from 1.8% to 3.2%. Indeed, the Department of Justice’s Bureau of Justice Statistics has concluded that, if incarceration rates do not decrease, approximately 6.6% of all persons born in the United States in 2001 will serve time in state or federal prison during their lifetimes.
Approximately 92% of all employers in the United States use criminal histories when making the decision whether to hire a job applicant. This is not surprising given legitimate concerns regarding identity theft, workplace violence, and lawsuit claims of negligent hiring. Nevertheless, employers must take special caution to use criminal information appropriately so as to minimize the risk that they are sued in the future. With that in mind, below is a discussion of what I would term “Information for Employers to Remember” when conducting criminal background checks and making employment decisions based on the information that they have learned.
As a reminder, Title VII of the Civil Rights Act (and, for that matter the Missouri Human Rights Acts) makes it unlawful for an employer to make employment decisions based on an employee’s, or a prospective employee’s, race, national origin, age, etc. In essence, this means that an employer must treat similarly situated employees similarly. This holds true when making the hiring decision. If an employer requires an African American job applicant to satisfactorily pass a criminal background screening, it must also require all non-African Americans to do so. In other words, it is unlawful to require persons of one race, ethnicity, or national origin to undergo a criminal background check but not others. Related to this issue, employers must uniformly apply criminal background information once they have discovered it. For example, liability may arise under the anti-discrimination laws where the evidence shows that an employer rejected an African American applicant based on his criminal record but hired a similarly situated White applicant with a comparable criminal record.
The foregoing examples likely seem obvious to those who are reading this—Title VII obviously prohibits employers from allowing racial or ethnic animosity to influence employment decisions. Title VII, however, also imposes liability when an employer’s neutral policy or practice has the effect of disproportionately screening out a Title VII-protected group and the employer fails to demonstrate that the policy or practice is job related for the position in question and consistent with business necessity.
In the context of an employee or prospective employee’s criminal history, these “disparate impact” claims most often arise when an employer has a policy which automatically excludes a person from employment if he or she has been convicted of a crime. The United States Department of Justice statistics from 2001 reveal that 1 out of every 17 White men is expected to spend time in prison at some point in their lifetime. Compare this to 1 out of every 6 Hispanic men and 1 out of every 3 African American men. Thus, it is easy to see how these “automatic exclusion” policies could disproportionately impact one race or ethnic group versus others. Please note that these policies are not unlawful per se. Nor is it sufficient to simply show that the policy has the potential to disparately impact persons of one race or national origin over others. Employers, in other words, can defend themselves against such claims by demonstrating that their policy, in practice, does not have a discriminatory effect.
Employers can also defend themselves against disparate impact claims by showing that their racially and/or ethnically neutral policy is job-related for the position in question and consistent with business necessity. When addressing this issue, Courts tend to look at three factors: (a) the nature or gravity of the offense or conduct, (b) the amount of time which has elapsed since the offense and/or completion of the sentence, and (c) the nature of the job held or sought.
To establish that a criminality exclusion is job related and consistent with business necessity under Title VII, the employer needs to show that the policy operates to effectively link specific criminal conduct, and its dangers, with the risks inherent in the duties of a particular position. This means when making an employment related decision (not to hire or not to promote, for example) based on criminal conduct in a person’s past, the employer should not only consider the three factors referenced above but also provide notice to the individual allowing him or her to explain the situation and provide additional information, if any, which may shed more light on whether the criminal conviction is or is not job related and consistent with business necessity. Factors for an employer to consider include:
(a) The facts or circumstances surrounding the criminal conviction;
(b) The number of offenses for which the person has been convicted;
(c) The age of the person at the time of conviction,
(d) The number of years in the workforce since the conviction or since release from prison;
(e) Evidence that the person performed the same type of work for another employer since the conviction,
(f) Rehabilitation efforts, if any, the individual has engaged in; and
(g) Employment or character references.
If an employer is able to demonstrate that it considered all of these factors, or gave the individual an opportunity to provide information relating to each of them, the employer in all likelihood will be in compliance with the anti-discrimination laws and will be able to successfully defend itself against a disparate impact claim.
Job Application Background Checks Criminal History Background Equal Employment Opportunity Commission Arrest and Conviction Records Civil Rights Act of 1964
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