Ask The Experts: Can Employers Screen Job Applicants Based on Criminal Records?

Criminal Records And Employment

An employer’s use of a job applicant’s criminal history in making employment decisions may, in some instances, violate the prohibition against employment discrimination under Title VII of the Civil Rights Act of 1964.

The U.S. Equal Employment Opportunity Commission (EEOC) has issued new guidance, urging employers to review their hiring policies to make sure they are not engaging in racial discrimination when they screen applicants based on any previous criminal history.

“National data supports a finding that criminal record exclusions have a disparate impact based on race and national origin,” the EEOC guidance says. “The national data provides a basis for the Commission to investigate Title VII disparate impact charges challenging criminal record exclusions.”

Radical Departure?

Is this a radical departure in hiring guidelines? Not at all, says Gail Heriot, professor of law at the University of San Diego – one of several experts we consulted on the issue.

“The EEOC has long taken the position that employers who reject job applicants on account of a prior criminal conviction may sometimes be in violation of Title VII,” Heriot said. “That position has been based on the controversial disparate impact theory of liability under which an employer may be held in violation of the law if its hiring qualifications have a disproportionate impact on women and minorities and it cannot demonstrate a business necessity for those hiring qualifications. Actual intent to discriminate is irrelevant.”

The EEOC’s recent guidance has been accompanied by increased enforcement activity against employers who hire employees for sensitive positions, such as security guard, and use prior criminal history as a screening tool. Brenda Smith, a law professor at American University, says the EEOC is simply using its authority to foster legal compliance and avoid unintended consequences as new socioeconomic trends emerge.

“Given the over two million individuals currently under correctional supervision, limiting employment opportunities because of past criminal convictions has a tremendous impact on the labor force, especially for individuals of color and low-income individuals who disproportionately face contact with the criminal justice system,” Smith said.  “So, I think EEOC’s clarification is a point of clarification given the many consequences of the practice both in terms of the impact of race and ethnicity and the impact on employment.”

Legal Challenge

As the EEOC becomes more aggressive on this point, a legal challenge should not be unexpected if a business finds itself facing federal sanctions because it declined to hire someone with a criminal record.

“To some extent, that challenge will depend on the plaintiff’s particular argument, the job at issue, and what kind of discrimination is at issue,” said Marcia L. McCormick, a professor at the St. Louis University School of Law.

How can employers avoid EEOC litigation in response to their hiring criteria? Marina Angel, a law professor at Temple University, suggests employers only consider offenses for a limited time, if the conviction is for an offense specifically related to the job in question. Charles Shanor, a law professor at Emory University, says the easy answer is for employers to simply follow the EEOC guidance.

“The harder questions are whether following the guidance will serve employer business needs well and  whether lack of EEOC claims will be offset by claims by others that they were discriminated against because others less qualified than them were hired, Shanor said. “As women and disabled job applicants will typically have much lower rates of criminal convictions, they may be likely plaintiffs in such cases.”

Ask The Experts

  • Do you see this as a significant departure in enforcement?
  • Is this ruling likely to be challenged in court, and if so, on what grounds?
  • How should businesses adjust their employment policies to be sure they are in compliance with the law?

 

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Gail Heriot

Professor in the University of San Diego School of Law

Do you see this as a significant departure in enforcement?

The EEOC has long taken the position that employers who reject job applicants on account of a prior criminal conviction may sometimes be in violation of Title VII. That position has been based on the controversial disparate impact theory of liability under which a employer may be held in violation of the law if (1) its hiring qualifications have a disproportionate impact on women and minorities and (2) it cannot demonstrate a business necessity for those hiring qualifications. Actual intent to discriminate is irrelevant. Last year, the EEOC announced a new guidance signaling a more aggressive stance on this issue. The guidance was accompanied by stepped-up enforcement activity against employers who hire employees for sensitive positions, such as security guard. The message is clear: If these employers are getting into hot water with the EEOC for considering the criminal backgrounds of their job applicants, then the EEOC’s standards for proving “business necessity” must be extraordinarily high.

Is this ruling likely to be challenged in court, and if so, on what grounds?

The guidance is policy, not a “ruling.”. The EEOC does not have rule-making authority in this area. One way such a policy can come before a court is for the EEOC to bring a lawsuit against an employer. Indeed, the EEOC did exactly that with EEOC v. Freeman. Last month a federal judge issued a scathing opinion holding in favor of the defendant in that case. I’ll send it to you.

How should businesses adjust their employment policies to be sure they are in compliance with the law?

The only surefire way for an employer to be in compliance with the law is never to hire. The EEOC’s guidance is carefully crafted to discourage criminal background checks without actually forbidding them outright. It achieves its purpose by creating uncertainty about liability. Even in cases in which state law requires the use of these checks, the EEOC warns employers that they may run afoul of federal law if they comply. Employers are thus caught between the proverbial rock and a hard place.
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Joseph W. Little

Emeritus Professor in the University of Florida’s Levin College of Law

Do you see this as a significant departure in enforcement?

I do not have the data to determine whether the EEOC’s enforcement practices have changed, but that the application of an employment rule based on prior convictions could violate Title VII is well established. The key questions are disparate impact – a factual question and job relatedness – a mixed factual/legal question, I suppose.

Is this ruling likely to be challenged in court, and if so, on what grounds?

Every ruling is subject to challenge in court.

How should businesses adjust their employment policies to be sure they are in compliance with the law?

Businesses should determine whether the anti-conviction polices are job related and whether the rule would disproportionately impact minority persons in the pool of employees and applicants that seek employment in the company. If the job pool were to be racially/ethnically/gender homogeneous no violation would be likely even if the policy were not job related. To find such a population would also seem unlikely.
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Brenda Smith

Professor in American University’s Washington College of Law

Do you see this as a significant departure in enforcement?

I don’t see this as a significant departure in enforcement, but really as the EEOC doing what is has the authority to do — issue guidance on emerging issues or issues where there is a lack of clarity. Given, the over 2 million individuals currently under correctional supervision, limiting employment opportunities because of past criminal convictions has a tremendous impact on the labor force, especially for individuals of color and low-income individuals who disproportionately face contact with the criminal justice system. So, I think EEOC’s clarification is a point of clarification given the many consequences of the the practice both in terms of the impact of race and ethnicity and the impact on employment. It is also quite consistent with the Attorney General Holder’s recent discussions about what the government is doing to address the issue of returning citizens. There are also many initiatives throughout the government attempting to address the impact of imprisonment. This is just another one.

Is this ruling likely to be challenged in court, and if so, on what grounds?

Likely challenges could come from an individual or class of individuals who learn they were not hired for a position soley for a criminal conviction that was not related to performing the essential functions of the job.

How should businesses adjust their employment policies to be sure they are in compliance with the law?

In terms of employer compliance I would suggest the following: looking at policies and procedures relating to the hiring process to determine if this is a factor; review applications to determine if questions out past criminal history are routinely used to exclude otherwise eligible candidates [some jurisdictions have passed "ban the box" legislation which removes those questions from applications; employers can inquire once the person is past the initial screening process]; training; and analyzing jobs to see if past criminal convictions are really a bar to holding a particular position.
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Gilbert Paul Carrasco

Professor in the Willamette University College of Law

Do you see this as a significant departure in enforcement?

The Equal Employment Opportunity Commission has long implemented a policy of enforcement based on challenges to facially neutral policies (i.e., those that do not reference race or ethnicity) that have a discriminatory impact on people of color. Such enforcement has varied between aggressive to non-existent, depending on the particular predilections of the Administration currently in power and on the political persuasion of those who serve on the Commission. “[T]he dispositive issue is whether a challenged practice serves, in a significant way, the legitimate employment goals of the employer.” Brooks, Carrasco, & Selmi, The Law of Discrimination: Cases and Perspectives, at 562 (Lexis/Nexis 2011).

Is this ruling likely to be challenged in court, and if so, on what grounds?

I see two possibilities for challenge. The first could relate to any particular application of such a disqualifying employment policy based on whether the requirement is manifestly related to job performance. For example, the Supreme Court upheld a policy prohibiting the employment of narcotics users in methadone maintenance programs, even in jobs that were not safety-sensitive, based on “legitimate employment goals of safety and efficiency.” If an employer in Colorado, for example, disqualified all convicted felons regardless of the crime or time of its commission, how could that possibly be fairly applied to a person who had been convicted years ago for the felony of marijuana possession with the intent to distribute for a job waiting tables in a State that no longer even criminalizes simple possession of marijuana? An employer would be hard pressed to challenge enforcement of Title VII against it if the policy operates to disqualify applicants for such a job, particularly if people of color had disproportionately been arrested and convicted for such a crime. On the other hand, if a person were recently convicted of embezzlement and was denied employment in a bank as a teller based on that, an analysis similar to that employed in Beazer would likely prevail.

The second possibility is more global and theoretical in nature. Some Members of the Supreme Court have raised the issue in recent cases as to whether an “effects test” may be constitutionally applied in a Title VII case based on the argument that such a construction is inconsistent with the Equal Protection Clause of the Fourteenth Amendment, which requires proof of intent to discriminate. A facially neutral policy that is rendered illegal under Title VII because it has a discriminatory impact, so the argument goes, cannot be applied (at least against a governmental entity, such as a police department) because it imposes liability without the necessity of proving racial animus.

How should businesses adjust their employment policies to be sure they are in compliance with the law?

Employers are well-advised to consider whether any employment disqualification they implement based on prior felony convictions is narrowly tailored as to the relatively recent occurrence of the conviction, the type of crime that triggers the qualification (e.g., crimes of moral turpitude that are disqualifying for positions requiring high degrees of trust and honesty), and, most importantly, whether the employment criterion is job-related and consistent with business necessity.
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Orly Lobel

Professor in the University of San Diego School of Law

Do you see this as a significant departure in enforcement?

The new three year plan of the EEOC, 2013-2016 is to target class based discrimination. Class in itself is not a protected category under federal employment discrimination laws. But it can become a prohibited proxy for protected groups as it correlates with protected identity categories race, gender, disability, religion. The EEOC hopes to address new frontiers of disparate impact discrimination. The essence of disparate impact law suits is that a facially neutral practice – i.e., practice that does not explicitly distinguish on basis of membership in a protected identity group – has discriminatory impact on protected group members. So the courts looking at these claims are not interested in the employer’s motivation but rather whether as a factual statistical matter the employer’s use of a certain hiring criteria is unlawful if it disproportionately adversely impacts certain groups, such as women or African Americans. The early cases of disparate impact were mostly about aptitude tests and educational requirements that disproportionately excluded minorities. More recently, disparate impact discrimination also looks at other screening tools, including criminal background checks, credit ratings and date-of-birth inquiries.

And yet, background checks are pervasive in the market and there is an agreement in the case law that they are frequently serving a reasonable business purpose of maintaining an honest and reliable workforce. These days it, as it has become harder for employer to receive references from previous employers (often former employers fear potential liabilities for defamation) and as the job market has become so broad and mobile, a large majority of employers use such screenings. According to the Society for Human Resource Management, almost 90% of all firms employ background checks.

In 2009, the EEOC filed a race discrimination lawsuit against the Freeman Corporation on the basis of employing both criminal and credit ratings checks. The case was decided August 2013, when the U.S. District Court Judge Roger W. Titus of Maryland dismissed the suit holding that the screening methods were reasonable and suitably tailored to the purpose of ensuring an honest workforce. The decision stated, “By bringing actions of this nature, the EEOC has placed many employers in the “Hobson’s choice” of ignoring criminal history and credit background, thus exposing themselves to potential liability for criminal and fraudulent acts committed by employees, on the one hand, or incurring the wrath of the EEOC for having utilized information deemed fundamental by most employers.” So the courts are not receptive to a broad version of disparate impact. They would be however receptive to more specific fact patterns that cannot show that the screenings were reasonably tailored for the recruitment process.

Last year, the EEOC issued a new guidance. Employers can benefit from the best practices issued in the EEOC’s background checks Guidance. First, the Guidance discusses the differences between arrest and conviction records. Arrests do not establish criminal conduct and therefore exclusion based on an arrest, in itself, is probably not job related and consistent with business necessity. And still, an employer may make an employment decision based on the conduct underlying an arrest if the conduct makes the individual unfit for the position. Also very important, a violation may occur when an employer treats criminal history information differently for different applicants or employees, for example using a criminal background as a reason not to hire a minority applicant but ignoring the criminal record of a white applicant. More broadly, the EEOC recommends that the screening policy will be tailored to consider the nature of the crime, the time elapsed, and the nature of the job and that the employer considers whether the screening is in fact necessary for the position.
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Marcia L. McCormick

Co-Director of the William C. Wefel Center for Employment Law at the St. Louis University School of Law

Do you see this as a significant departure in enforcement?

Not at all. Title VII is enforced by the the EEOC, a federal agency, that can bring lawsuits against employers and that issues guidance about what employment practices may violate the laws it enforces. It has always cautioned employers that practices like this one might violate Title VII unless the screening is related to the particular job the applicant has applied for–in other words unless the job requires that the person who holds it not have a felony conviction. Moreover, the vast majority of enforcement comes from individuals who file lawsuits against employers. And individuals have been bringing discrimination claims challenging this kind of screening for a very long time.

Is this ruling likely to be challenged in court, and if so, on what grounds?

The EEOC’s press release or statement of what it believes the law requires isn’t a ruling. It is just advice, and so in that sense, there is no mechanism for advice to be challenged in court. That said, in a case brought by the EEOC or an individual applicant that alleges that this kind of screening discriminated against applicants based on race, sex, national origin, color, or religion, the employer will certainly challenge the argument that the screening discriminated.

To some extent, that challenge will depend on the plaintiff’s particular argument, the job at issue, and what kind of discrimination is at issue. I’ll give a hypothetical example, though. Imagine an African American applies to be a cashier at a retail store. The employer discovers that the applicant has a 20-year old conviction for felony assault. The employer rejects that applicant. In the city where the store is located, imagine that African Americans are much more likely to have felony convictions than are European Americans. This rule operates to screen out more African Americans than European Americans–it has a disparate impact on the minority group. An employer can have rules like this that disproportionately screen out members of minority races, but only if the rules are job related and consistent with a business necessity–that the rule states a minimum qualification for this particular job. The retail store here would have to show that not being a former felon is a minimum qualification to be a cashier. That might be difficult if the rule is about all felonies and not limited in time. Cashiers handle money, use cash registers, and handle merchandise. A past violent incident doesn’t seem to relate to a person’s ability to handle money, use a cash register, or handle merchandise. If the rule focused instead on felonies that involved theft or fraud, it will be more easily seen as a minimum job requirement for a job that handles money. Although even then, there may be reasonable arguments that a cashier is closely supervised enough that an employer can guard against theft as easily or better without relying on this rule.

If this is the hypothetical case, the employer can challenge the initial claim that the rule impacts members of the minority race disproportionately. It can also show that the rule it has is a minimum qualification for the job at issue. Employers might also try to argue that not having a felony conviction is a minimum qualification for every job, or that for felony convictions, employers shouldn’t have to probe that the rule is related to the qualifications to do the job. No court has accepted that argument, however, and Congress and the Supreme Court are the ones that say we have to look at the tasks the job requires and focus on minimum qualifications.

How should businesses adjust their employment policies to be sure they are in compliance with the law?

Employers should look at their employment rules and determine whether those rules really describe what qualifications a person needs to do each job. It’s not enough that employers want a better class of employee if the rules they pick keep out women or members of minority races, nationalities, colors, or religions. Not all of these general rules will do that, but we know there are some disparities in our communities. Employers will know what rules are likely to keep out members of traditionally disadvantaged groups. It just makes good business sense, too. Why leave potential talent on the table?
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Charles A. Shanor

Professor in the Emory University School of Law

Do you see this as a significant departure in enforcement?

EEOC’s earlier guidance was very general, focused more on arrests than convictions, and was not the subject of much litigation, by the agency or by private plaintiffs. The new guidance is very precise, has been trumpeted in the media by EEOC.

Is this ruling likely to be challenged in court, and if so, on what grounds?

It will certainly be challenged in court. Indeed, there is already some skepticism at the district court level.

How should businesses adjust their employment policies to be sure they are in compliance with the law?

EEOC provides guidance regarding type of job, recency of conviction, and type of crime, etc. Employers can avoid likely litigation by EEOC by following the guidance. The harder questions are (a) whether following the guidance will serve employer business needs well and (b) whether lack of EEOC claims will be offset by claims by others that they were discriminated against because others less qualified than them (shown for example by criminal records and interrupted work histories from incarceration) were hired. As women and disabled job applicants will typically have much lower rates of criminal convictions, they may be likely plaintiffs in such cases.hy leave potential talent on the table?
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Marina Angel

Professor in Temple University’s Beasley School of Law

Do you see this as a significant departure in enforcement?

No. Given the massively disproportionate convictions of African-Americans for felonies, the across the board exclusion of those with such records has a massive disparate impact on African Americans. A felony is any crime that carries the possibility of a year or more of imprisonment. Many very minor offences potentially carry a penalty of a year or more.

Many states already have statutes or regulations prohibiting all use of arrest records and limited use of conviction records. Convictions should be “job-related”, thief for a person applying for a cashier job, and time limited, three years. If someone has not engaged in thefts for three years, that person should be considered rehabilitated.

Is this ruling likely to be challenged in court, and if so, on what grounds?

Maybe. BMW will get a lot of bad publicity from a formal hearing to determine if it discriminated against African Americans. There are wealthy African Americans who buy BMWs for the status symbol effect; they and allies of all colors, including Latin Americans, will buy some other model of luxury car.

How should businesses adjust their employment policies to be sure they are in compliance with the law?

Consider only offenses for a limited time, if the conviction is for an offense specifically related to the job in question.
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Terry Smith

Distinguished Research Professor of Law, College of Law, DePaul University

Do you see this as a significant departure in enforcement?

It’s a significant departure in as much as there hasn’t been a great deal of federal litigation around the issue. Some states like New York limit the use of criminal convictions as job criteria statutorily. These types of law are typically under-enforced or unenforceable by individual applicants, however, since an employer might give multiple reasons or no reason at all for declining to hire an applicant. The significance of the EEOC suits is that EEOC is using the class action vehicle and the resources of the federal government to ban the use of consideration of criminal convictions unless the employer can demonstrate their specific relevance to a given job position. It’s one thing if you apply for a cashier position with a prior theft conviction; it’s quite another if you apply for the same position with a prior conviction for possessing a controlled substance. The latter probably has little relationship to your ability to be a good, trustworthy cashier, and courts are unlikely to accept vague arguments about moral turpitude from the defendant-employers.

Is this ruling likely to be challenged in court, and if so, on what grounds?

The EEOC’s interpretation of disparate impact law will be vigorously challenged by the defendants and outside employer groups. It’s indisputable that consideration of past criminal convictions by employers has a racially disparate impact on racial minorities, who, for a variety of reasons not entirely related to actual culpability, make up a disproportionate share of criminal convictions. Rather than training their attention on the statistical issue, the defendants will argue that consideration of past criminal convictions is a reasonable and necessary job qualification. Apart from the actual merits of defendants’ arguments, however, they are aided by courts’ growing skepticism of the validity of disparate impact theory–in which no showing a discriminatory intent is required–and by the fact that courts are not required to defer to the EEOC’s interpretation of Title VII.

How should businesses adjust their employment policies to be sure they are in compliance with the law?

Businesses would be well advised not to have blanket exclusions for applicants or employees who have a criminal conviction. Instead, employers should assess the type of conviction and its actual relevance to the job for which an individual is applying. A more nuanced policy could satisfy the EEOC interpretation and save employers litigation costs.
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Leticia Saucedo

Professor of Law and Director of Clinical Legal Education, UC Davis School of Law

Do you see this as a significant departure in enforcement?

I do not think the EEOC is departing from its traditional practice of seeking out employer practices that discriminate on the basis of race or some other protected category. In the cases that the EEOC has investigated under this policy, it seems the EEOC has found evidence of employer policies having a disparate impact on minorities.

Is this ruling likely to be challenged in court, and if so, on what grounds?

An employer might challenge the EEOC’s findings based on its belief that its policies are job-related and are consistent with business necessity.

How should businesses adjust their employment policies to be sure they are in compliance with the law?

Businesses should determine the purpose for their policies and determine whether these policies are necessary for the jobs in question.
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Marley S. Weiss

Professor of Law, Francis King Carey School of Law, University of Maryland

Do you see this as a significant departure in enforcement?

I think EEOC is making enforcement here a stronger priority than it has in years past. No doubt this is because of the higher and higher percentage of incarcerated and formerly incarcerated individuals who are non-white, particularly African-American men. Because such a high percentage of male, African-American job applicants have prior convictions, a facially neutral employment policy excluding applicants with convictions operates to exclude a disproportionately large percentage of African-American men.

The application of Title VII disparate impact doctrine to employer policies excluding applicants with prior arrests and/or prior convictions is not at all new. When I was still a law student, in around 1970, as part of a client-advice assignment, I wrote a memorandum of law advising an employer, which concluded that in most parts of the country (dependent on the racial demographics of the time), a hiring or promotion policy excluding job applicants with either a prior conviction record or a prior arrest record was likely to cause a racially disproportionate impact. Under the law prevailing at that time, a race-based disparate impact would be held in violation of Title VII unless the employer could defend it by establishing that it was job-related for the position in question and also justified on grounds of business necessity. The landmark Supreme Court decision in Griggs v. Duke Power Co. established this analysis in the context of standardized intelligence tests and high school diploma requirements, and its application to arrest and conviction records seemed fairly clear even at that time. I also concluded that excluding job applicants from consideration based on arrest alone, without regard to conviction, would seldom be defensible, and would in many instances cause a much more severe disparate impact.

Title VII has to some extent come full circle. The U.S. Supreme Court decision in Wards Cove Packing Co. v. Atonio in 1989 weakened disparate impact doctrine in a way which would have undercut this analysis. However, in the 1991 Civil Rights Act, Congress amended the statute to reinstate the analysis of Griggs and legislatively overturn the Wards Cove decision in many (although not every) respect. The relevant legal rule today is largely the same as it was in the 1970s, albeit with some departure from this for a few years in the late 1980s and early 1990s.

If anything, the disparate impact problem with arrest and conviction-based selection policies today is worse than it was 20 or 30 years ago, because the percentage of young men of color being arrested and convicted, especially young African-American men, has grown higher during that time span. Obviously, however, this will vary in different parts of the country depending on the racial demographics as well as arrest and conviction records. Usually, the EEOC or a private plaintiff will have to show unlawful, disparate impact based on the labor market demographics for the area where the employer is operating and the pool from which it is making its labor force selections, rather than national data. Thus the policy may cause a severe disparate impact in a highly urbanized, heavily minority population area, while having a much weaker impact, if any, in an area that is overwhelmingly white and has little or no racial disparity in arrest and conviction rates.

The other side of the equation, what the employer must show to establish that a policy is job-related for the position in question and justified based on business necessity, may be somewhat easier for the employer today than it was 30 years ago; the case law under this aspect of the 1991 Civil Rights Act amendments is far from settled. In any event, it is not enough to assert that the employer does not want to take the risk of having an ex-convict among its employees, or that it has so many applicants it might as well select those who have no such risk factor in their background. For example, although the employer may have 100 applicants for the job of janitor in a fast food restaurant, it is unlikely to be able to persuade a court that having no prior conviction record is important to the employee’s successful performance of the duties of that job. In addition, it will be hard for the employer to show that excluding ex-convicts from its employ is tightly related to safe and efficient performance of its business.

On the other hand, an employer operating a day care center will not have a hard time showing that excluding applicants with a prior record of sex offenses is related to the worker’s proper performance of the job, as well as necessary to the employer’s safe and efficient business operation.

Is this ruling likely to be challenged in court, and if so, on what grounds?

I would not be surprised to see employers challenging the EEOC guidance in the course of defending a case brought by either the EEOC itself or private litigants. Almost every action of every regulatory agency nowadays seems to be challenged. That is a different question from whether such a challenge will be deemed meritorious. Here my analysis is that ultimately, it will be up to the Supreme Court. And the challenge is likely to be focused on application of the EEOC guidance to the facts of the specific employer policy, i.e., the specific conviction (or arrest)-based policy, and the specific industry and occupation for which the conviction (or arrest) is treated as disqualifying. I would be surprised if the Supreme Court rejected the analysis of the EEOC guidance itself, which in my view is not a major departure from well-established analysis under Title VII. However, the Supreme Court has expressed some question about the constitutionality of the disparate impact provisions of Title VII in recent decisions. Such a holding certainly would be a major departure, given the 40+ years of precedent using disparate impact under Title VII and the fact that the doctrine itself first was established by the Court itself in Griggs. The composition of the Supreme Court today, of course, is very different than it was in the early 1970s. Should the Court overturn disparate impact as a type of claim of discrimination under Title VII, naturally, the portion of the EEOC Guidance based on that theory would lose validity.

How should businesses adjust their employment policies to be sure they are in compliance with the law?

In my view, an employer should think carefully before adopting any blanket exclusion of a job applicant from consideration based on prior conviction record. The employer is always free to consider job applicants competitively, so if it has 10 applicants for one position, it is not required to hire either of the two with prior conviction records if a different applicant appears to be better qualified for the position. But by maintaining an exclusionary hiring policy, the employer gives no consideration at all to such job applicants, even if one of them might be head and shoulders above the competing applicants in qualifications and ability to perform the job.

In addition, I would urge an employer who feels it important to exclude ex-convicts to analyze the matter in greater detail. Usually, a blanket ex-conviction exclusion is not necessary, and is hard to legally justify, while a more targeted exclusion might be justifiable legally. For example, a bank may be able to show that requiring job applicants to have had no convictions for financial misdeeds of any sort is a policy that is job-related for positions entrusted with handling money. In other words, the more narrowly targeted the exclusion is, in terms of the types of offenses and convictions, and the more closely connected those convictions are to the jobs at issue, or in some cases, more broadly, the nature of the employer’s business, the stronger the employer’s defense will be to a disparate impact claim. In addition, by more narrowly limiting the types of criminal offenses covered by an exclusionary policy, the less the disparate impact may be on racial minority group members, further decreasing the employer’s liability exposure.
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Michael Z. Green

Professor, Texas A&M University School of Law

Do you see this as a significant departure in enforcement?

Not really. The EEOC had already sent a message to employers in its August 25, 2012 Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions that indicated this kind of case would be an ongoing focus for the EEOC. When it first issued that Guidance, there was some public criticism especially from several state attorney generals who asked the EEOC to reconsider. However, the EEOC responded about a year ago in August 2013 stating that it had received a tremendous amount of feedback and the decision to pursue the Guidance had resulted from a bipartisan vote of the EEOC. So I don’t think it should have been seen as a significant departure as the EEOC gave plenty of notice. Now one could question whether the August 25, 2012 Guidance was a significant departure. To the extent the EEOC is now focusing on criminal conviction checks based on the Guidance is probably a new development.

However, the EEOC makes a great case as to why this Guidance is an update (and not a departure from prior practice) and how the Guidance is based upon the amount of research that it conducted regarding the potential discriminatory impact on race or national origin from using criminal convictions as a sole screening device without determining the business necessity in a particular situation. I think that a letter on the EEOC website by the EEOC Chair, Jacqueline A. Berrien, dated August 29, 2013 and made in response to concerns expressed by various state attorney generals to the Guidance, gives a good explanation of the reasons for the EEOC’s enforcement goals and responds to most of the criticism of the EEOC’s Guidance. Further, while the EEOC states that its Guidance is merely an update of longstanding policy, I think there is some support for the assertion that this Guidance is a bit of a departure, albeit not a significant one, from prior EEOC enforcement activity regarding criminal convictions screenings as being a form of disparate impact discrimination under Title VII. Although there are cases involving disparate impact challenges by the EEOC based on criminal convictions prior to the Guidance, the development of the Guidance shows a much more concerted effort by the EEOC to pursue these claims as part of its enforcement agenda.

Is this ruling likely to be challenged in court, and if so, on what grounds?

Yes, I think the heightened concern expressed by the state attorney generals to the Guidance forecasts that there will be consistent challenges to the EEOC’s enforcement pursuits. The State of Texas attorney general has already filed a lawsuit challenging the application of the Guidance to state employers in Texas by arguing that various state laws may require employers not hire persons with criminal convictions.

Also, I believe that some private employers who have already been subjected to this form of enforcement by the EEOC have challenged these actions in the courts. The State of Texas complaint against the EEOC mentions other lawsuits already filed where challenges to the EEOC’s actions were made on a case-by-case basis related to the type of position in question and how the employer used the criminal conviction screening to address applicants in those cases. For private sector employers, the main challenge could be related to the standard set by the Supreme Court regarding so-called disparate impact discrimination cases. Those cases are based upon the theory that an employer can discriminate against a protected group by using a policy or practice that seems neutral on its face but creates a disproportionate impact on a class protected by Title VII such as race or national origin. Once a plaintiff or the EEOC establishes the existence of the disparate impact, the employer usually has the burden to show that the policy or practice neutral on its face is justified by business necessity. Well, the debate is about whether a policy barring the hiring of someone who has a criminal conviction is always justified by business necessity or what level of proof is needed to establish business necessity by the employer. If courts agree that there is no doubt about whether a criminal conviction is a business necessity and job-related in a particular case, then the argument is that the EEOC’s efforts are frivolous. As a result, an employer should not only seek to dismiss an EEOC suit but it should also seek court sanctions against the EEOC based on its actions to enforce its Guidance as being frivolous. However, there could be situations where an employer uses a blanket screening out process based upon criminal conviction, and as supported by data regarding our criminal justice system, may have a disproportionate negative impact on applicants due to their race or national origin.

So the EEOC Guidance asks the employer to do a more focused check by looking at the types of crimes that are more job-related and a business necessity for the position in question. If you paid attention to something that Supreme Court Justice Scalia said in an opinion in the famous Ricci v. Destefano decision in 2009, you would note that he raised the question of whether disparate impact theory as a form of discrimination under Title VII was even constitutional. Although it is not clear that a majority of the members of the Supreme Court agree with him, this type of enforcement action, if a challenge gets to the Supreme Court, could be the perfect vehicle to argue the continued legality of disparate impact theory under Title VII. So on a broader level, challenges to the disparate impact theory as a whole could be raised in courts or courts could be asked to even address whether the burden to show job necessity should be placed on the employer when the dispute involves a criminal conviction policy or whether business necessity should be presumed in such cases.

Given the strong negative feelings that various constituencies supporting employers have expressed about the EEOC’s Guidance on criminal convictions, a broad challenge to the entire disparate impact theory especially with respect to criminal convictions may be the type of claim that could start to develop in the court system and eventually resonate with the current members of the Supreme Court if challenges get to that level.

How should businesses adjust their employment policies to be sure they are in compliance with the law?

The EEOC gives some direct thoughts about this in its Guidance. Rather than just use a criminal background check as a complete screening out for any applicant who is found to have a criminal conviction, the employer should target the position based upon certain types of criminal convictions screening that is directly related to the duties of that position. Then even when if the employer does find a criminal conviction, the employer must make sure that there is some nexus to the conviction and the type of work the employee will be doing. Also, the employer should make sure that any criminal conviction screening results are followed up with a direct connection to make sure the information is valid.

Employers should review their records over the last couple of years to make sure that they have not applied blanket bans on hiring based on criminal convictions. If there are such practices in place, the employer may want to go back and review any hiring decisions made based upon such policies and target the criminal convictions to the job position and make sure that any applicants screened out were appropriately reviewed to make sure their conviction status was correct.
Back to All Experts

Halima Horton

Partner, McGuire Woods LLP

Do you see this as a significant departure in enforcement?

No. The EEOC has been targeting so-called “systemic discrimination” for years. The EEOC defines systemic discrimination as involving “a pattern or practice, policy, or class case where the alleged discrimination has a broad impact on an industry, profession, company or geographic area.” In addition, the EEOC has been pairing up with advocacy groups, and there are a number of advocacy groups that have so-called “ban the box” initiatives to encourage legislation to prohibit employers from requiring applicants to disclose their criminal histories on job applications.

How can businesses be proactive in the midst of lawsuits and other laws that restrict solicitation and use of applicants’ criminal histories?

To ensure that employers are in compliance nationwide, state-by-state surveys and policy reviews are always a good idea. Beyond that, to balance the need to maintain a safe workplace for employees and customers with the need to ensure that applicants are treated fairly, employers may consider soliciting information on criminal backgrounds after making a conditional offer of employment, depending on state and local laws. Other options may include soliciting or obtaining limited criminal histories only for employees in certain positions. If sued based on the use of criminal background information, however, employers should be prepared to defend themselves vigorously, including showing how the policies are job related and consistent with business necessity.

 
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