EEOC Enforcement Guidance – Arrest and Conviction Records in Employment Decisions

April 25, 2012 marks the date of issuance of the EEOC’s Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq.   A Question and Answer document was also released. The EEOC met publicly in July 2011 to discuss revision of the existing Guidance.  Testimony was submitted in two public meetings and hundreds of written comments were submitted by diverse groups.   The Guidance builds on longstanding guidance documents that were issued by the EEOC over 20 years ago. Documents will soon be available at www.eeoc.gov.  Materials from the public meeting, including transcripts and testimony can be found at http://eeoc.gov/eeoc/meetings/index.cfm.

             

   The Guidance updates relevant data, consolidates previous EEOC policy statements on this issue into a single document and illustrates how Title VII applies to various scenarios that an employer might encounter when considering the arrest or conviction history of a current or prospective employee.  Some of the topics included in the Guidance are:

1.  How and employer’s use of an individual’s criminal history in making employment decisions could violate the prohibition against employment discrimination under Title VII
2.  Federal Court decisions analyzing Title VII as applied to criminal record exclusions,
3.  The differences between the treatment of arrest records and conviction records,
4.  The applicability of disparate treatment and disparate impact analysis under Title VII,
5.  Compliance with the other federal laws and or regulations that restrict and /or prohibit the employment of individuals with certain criminal records, and
6.  Best practices for employers.

 

                Title VII prohibits employment discrimination based on race, color, religion, sex or national origin.  A violation may occur when an employer treats criminal history information differently for different applicants, based on race or national origin (known as disparate treatment liability).  An employer’s neutral policy may disproportionately impact some individuals protected under Title VII and may violate the law if not job related and consistent with business necessity (known as disparate impact liability).

Special attention should be paid to relevant sections of this Guidance which address common personnel policies within long term care and/or other healthcare facilities.  Such as the information below related to the Use of Criminal History Information:

                The Guidance found that one survey showed a total of 92% of responding employers subject their employees to criminal background checks in order to combat theft and fraud, as well as heighten concerns about work place violence.    Health care facilities utilize this function to prevent patient/resident abuse incidents in addition to those reasons mentioned above.  Of particular interest to health care facilities should be the Guidance provided under §VII.  (Page 24 of the Guidance) This section addresses Positions Subject to State and Local Prohibitions or Restrictions on Individuals with Records of Certain Criminal Conduct.
 

As an example,  Pa Code §15.141 under the Older Adult Protective Services Act  states that  facilities shall require applicants for employment to submit applications with a criminal history report, obtained within 1 year immediately preceding the date of application, and that a facility may not hire an applicant nor retain any employee required to submit a criminal history report if the criminal history report reveals a conviction under one or more of the provisions of 18 Pa.C.S. (Relating to the Crimes Code) The Guidance points out that States and local jurisdictions may have laws and / or regulations that restrict or prohibit the employment of individuals with records of certain conduct.   Therefore, if an employer’s exclusionary policy or practice is not job related and consistent with business necessity, the fact that it was adopted to comply with a state or local law or regulation does not shield the employer from Title VII liability.

               
             We recommend that you review your current policies related to the use of arrest and conviction records in employment decisions in light of this new Guidance and compare your organization to the examples and best practices contained within to insure that your facility is not unnecessarily exposed to Title VII claims and litigation.