On April 25, 2012, the EEOC issued an update to its Enforcement Guide warning that it will carefully scrutinize employers who use arrest or conviction records as part of their pre-employment screening. The new Guidance, “Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964,” provides an indication of the EEOC’s position when examining employer’s pre-employment screening.
The Guidance is clear that employers should only use records of convictions, not arrests, in pre-employment screening and only within tight limitations. The EEOC will effectively presume that a pre-employment screening for criminal convictions will result in a disparate impact upon minorities. This means that it will presume such screening will disproportionately exclude protected classes from employment consideration, shifting the burden to the employer to show the policy is not discriminatory. The fact that the employer has a racially balanced workforce will not be sufficient to disprove disparate impact.
If an employer uses criminal conviction records as pre-employment screening, it should:
- not ask about convictions on the job application and use the screening only after the candidate has advanced in the interview process;
- limit the inquiry to convictions narrowly tailored to identify criminal conduct “with a demonstrably tight nexus to the position in question”;
- limit the time within which the conviction occurred;
- have an articulable business necessity for the exclusion; and,
- provide the affected candidate the opportunity to explain the conviction to determine whether the policy as applied is job related and consistent with business necessity.
The Guidance also states employers must show that their policy “operates to effectively link specific criminal conduct, and its dangers, with the risks inherent in the duties of a particular position.” A policy that excludes all candidates with any criminal convictions from all employment opportunities will not withstand EEOC scrutiny.
This is an area fraught with pitfalls for employers. If you have, or are planning to implement, a pre-employment screening regimen that includes restrictions for criminal convictions, you should consult experienced labor counsel.
Each case a business or individual may face is unique and may require legal advice. If you would like additional information regarding the content of this article, please contact the author, Keith Overholt, or the Chair of our Labor and Employment Department, John Egbert.