The Equal Employment Opportunity Commission recently released guidelines regarding the legal use of arrest and conviction records as part of the EEOC’s Eradicating Racism and Colorism from Employment Initiative.
Arrests may never be utilized to make employment decisions.
In terms of convictions, Title VII of the Civil Rights Act prohibits discrimination in employment based upon race, color, sex, religion and national origin. The EEOC determined an employment barrier to individuals of race, color and national origin is the improper use of criminal conviction records by employers.
A company may violate Title VII in two ways.
First, an organization is forbidden to treat job applicants with criminal records inconsistently by refusing to hire those of certain races, colors or national origins. This type of discrimination is referred to as disparate treatment discrimination, since individuals are treated differently based upon a protected class status.
Second, even if the rejection of candidates is consistently applied based upon criminal convictions, the enterprise may still be committing disparate impact discrimination. This type of discrimination is defined as maintaining a conviction exclusion policy that on the surface appears nondiscriminatory, but inadvertently does discriminate against an entire protected class by disproportionately excluding applicants of the protected class. However, if the corporation is able to show the exclusion is job related and consistent with business necessity for the job opening, then the policy is legal.
The establishment is allowed to prove the exclusion is job related and consistent with business necessity by one of two means. The business may conduct a statistical validation study according to the Uniform Guidelines on Employee Selection Procedures law.
The results must show the validity of the criminal conduct exclusion for the position in question. However, a validation study is traditionally expensive and time consuming. Instead, the company is permitted to develop a selection screening policy requiring the analysis of three factors. First, judge the nature and gravity of the crime by considering the harm caused by the crime, i.e. a theft causes property loss. Review the legal elements of a crime, such as a felony theft in which the job seeker used deception, threat or intimidation. In terms of gravity, a misdemeanor would be less severe than a felony.
Second, assess the time elapsed since the crime and, or completion of the sentence. The policy may state the time length for a criminal conduct exclusion. The law does not endorse a specific timeframe. However, permanent exclusions from all employment based on any and all offenses are illegal.
Third, appraise the relevancy of the nature of the crime to each specific job. A factual assessment must be conducted by considering job duties, essential functions and the circumstances under which the job is performed, such as the level of supervision received and interaction with coworkers or vulnerable individuals.
The environment for the position may also be considered. For example, are the job duties performed in a warehouse or private home?
The EEOC guidelines require an individualized assessment whereby the enterprise tells the job applicant he may be excluded because of past criminal conduct.
He is then given an opportunity to demonstrate the exclusion does not properly apply to him. He may provide information such as references, rehabilitation efforts, whether he is bonded, circumstances surrounding the offense and any other information regarding fitness for the particular position.
The corporation may then assess his conviction and decide if applying the conviction exclusion policy is job related and consistent with business necessity.
Be aware that the Fair Credit Reporting Act establishes rules to follow when securing criminal conviction records from third-party consumer reporting agencies.
In addition, state and local laws forbidding the employment of individuals with records of certain criminal conduct will preempt Title VII.
Lynne Haggerman, M.S., is president/owner of Lynne Haggerman & Associates LLC, a Springfield firm specializing in management training, retained search, outplacement and human resource consulting. She can be reached at lynne@lynnehaggerman.com.
