Summary of EEOC 2012 Enforcement Guidelines in Relation to Arrest and Conviction Records In Employment Decisions

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Introduction:

Since 1964 various civil rights and other Federal acts have been implemented setting forth what have come to be known as the “protected classes”.  The protected classes include: Race, Ethnic Origin, Color, Disabilities, Religion, Family Status, Gender and Age.  The EEOC has given new guidance for its rules as they deal with past criminal conduct mainly focus on race and ethnic origin discrimination. Within the last few days the EEOC has completed an end around in an effort to bootstrap past criminal conduct (back checks and investigations) exclusions for employee selection and retention as a protected class by citing that since 1 out of 3 African Americans, 1 out of 6 Latino Americans and 1 out of 17 White Americans are expected to serve time in prison during their lifetimes there is a presumed disparate impact in relation to race and ethnic origin.  The EEOC bases its new guidance provisions regarding the use of past criminal conduct relating to selection and retention employment decisions as having a disparate impact or treatment on African Americans and Latino Americans due to the fact that criminal conduct is higher for African Americans and Latino Americans than for White Americans.   

Therefore, if a claim of discrimination is made regarding race or ethnic origin as it relates to disparate impact and employee selection or retention, the EEOC will analyze the use of past criminal conduct only if the criminal record is used differently for Whites, Latinos or African Americans.  In other words, the use of criminal records must be analyzed the same for all races and ethnic origins.   At first glance that seems like a no brainer.  No reasonable and conscientious employer wants to discriminate against anyone.  However, the EEOC has basically mandated that an employer use its outlined procedures, or probable cause for discrimination is likely to be found.  This article will analyze the new EEOC guidance and explain how to implement the provisions to avoid discrimination or claims of discrimination. 

The burden of proof is on the employer to demonstrate it did not discriminate: 

The burden of proof is on the employer to prove it did not discriminate based on race or ethnic origin, and the new EEOC guidance provisions outline how and when the EEOC will accept a defense to an allegation of discrimination. 

What proof is sufficient to prove an employer did not discriminate?:

An employer must be able to demonstrate that its policy or practice in selection and retention is job related for the position in question and consistent with business necessity.  If an employer cannot show the job relatedness, then because of the statistics mentioned above relating to criminal conduct and race/ethnic origin the EEOC indicates that there is a presumption of discrimination.  This means the employer disproportionately screens out a group because it could not demonstrate that the policy or practice of using prior criminal conduct is job related for the position in question and consistent with business necessity.

The EEOC cites data that African Americans are incarcerated 5.6 times more than Whites and Hispanic are incarcerated 3 times more than Whites.  Absent the reasons that the EEOC indicates are sufficient to overcome the presumption of discrimination, the EEOC infers that somehow that data supports a finding that past criminal conduct exclusions (in and of itself) creates a disparate impact based on race and national origin. The baseline of an EEOC discrimination claim regarding the use of criminal background information is that employers start off with (prior to a hiring analysis) the premise that a disparate impact or treatment already exists when past criminal conduct is used for selection or retention and that employers must follow EEOC practices and procedure methods to demonstrate a suitable defense.  We will discuss what those EEOC practices and procedure are below.

The bottom line is that to avoid and/or defend and EEOC claim for discrimination based on exclusion for prior criminal conduct the employer should implement the EEOC guidelines as closely as possible.  An employer must be able to document the reasons for not hiring or firing. 

The following are the issues regarding and answers to the new EEOC guidance and how to implement the EEOC practice and procedures that will help provide protection for the employer from claims of discrimination relating to race/ethnic origin regarding the use of past criminal conduct as a factor in the hiring and retention process.

The employer must show a policy or practice that demonstrates a relationship to the successful, safe and efficient job performance.  In the case of a past criminal conduct exclusion the employer’s policy of disqualifying any applicant will be looked at by the EEOC as too broad and not closely enough linked or related to the job.  The EEOC indicates that an employer must address these issues, in one of two ways.

“Two circumstances in which the Commission believes employers will consistently meet the “job related and consistent with business necessity” defense are as follows:

[1.] The employer validates the criminal conduct exclusion for the position in question in light of the Uniform Guidelines on Employee Selection Procedures (if there is data or analysis about criminal conduct as related to subsequent work performance or behaviors); OR

** [2.] The employer develops a targeted screen considering at least the nature of the crime, the time elapsed, and the nature of the job (the three factors indentified by the court in Green v. Missouri Pacific Railroad, 549 F.2d 1158 (8^th Cir. 1977)).  The employer’s policy then provides an opportunity for an individualized assessment.”

**  This article will only deal with the second circumstance, the “Green Factors” and not with the Uniform Guidelines. The Uniform Guidelines do not specifically provide details to deal with past criminal conduct as it relates with the selection or retention process as does the “Green Factors” analysis.

ISSUE:  What analysis must an employer go through to determine what past criminal conduct is relevant when assessing (risk) and whether an exclusion for past criminal conduct is job related for the position in question and consistent with business necessity?  How is this achieved?

Answer:  The employer should use the following basic guidelines known as the “Green Factors” [from the case of Green v. Missouri Pacific Railroad 1977].  Those factors are:

1.     The nature and gravity of the offense or conduct;

2.     The time that has passed since the offense or conduct and/or completion of the sentence, and;

3.     The nature of the job held or sought.

We will go into more detail regarding these factors below. 

First, let’s deal with a few other issues that are important to the EEOC and its rules before we break down how to implement the “Green Factors” relating to past criminal conduct and an appropriate selection and retention process and analysis

The EEOC’s initiative is to have employers use what it calls its “best practices” to:

1.     Eliminate policies or practices that exclude people from employment based on any criminal record.

2.     Train managers, hiring officials, and decision makers about Title VII and its prohibition on employment discrimination.

3.     In an effort that the employer must accurately distinguish between applicants who pose an unacceptable level of risk and those who do not.

4.     Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct.

-Identify essential job requirements and the actual circumstances under which the jobs are performed.

--such jobs. Identify the criminal offenses based on all available evidence.

-Determine the duration of exclusions for criminal conduct based on all available evidence. Include an individualized assessment.

- Record the justification for the policy and procedures.

-Note and keep a record of consultations and research considered in crafting the policy and procedures.

5.      Train managers, hiring officials, and decision makers on how to implement the policy and   procedures consistent with Title VII.

6.     When asking questions about criminal records, limit inquiries to records for which exclusion would be job related for the position in question and consistent with business necessity.

7.     Keep information about applicants’ and employees’ criminal records confidential. Only use it for the purpose for which it was intended.”

**  All In an effort that the employer must accurately distinguish between applicants who pose an unacceptable level of risk and those who do not. 

With the foregoing EEOC “Best Practices” in mind, let’s break down the issues.

ISSUE: How does an employer deal with ARRESTS?:

Answer:  First, an employer should never deny an applicant solely based on the fact that the applicant was once arrested.  However, an arrest may trigger an inquiry into whether the conduct underlying the arrest justifies an adverse employment decision based on descriptions of the underlying conduct. 

ISSUE: The Application and Past Criminal Conduct: 

Answer: The EEOC recommends that employers not ask about convictions on job applications.  However, if and when an employer makes such inquiries that such inquires be limited to convictions for which exclusion would be job related for the position in question and consistent with business necessity.  I think it is important to ask if the applicant has a criminal conviction.  You are only going to use the criminal conduct information in the analysis set forth by the EEOC anyway and not for a discriminatory purpose.  It is important to know this information, especially if the criminal background company performing the investigation misses the criminal history in the courts.  The idea is not to be closed-minded simply because the question is on the application and is answered in the affirmative to a conviction.  Put the applicant through the whole application process as you would for any applicant without predisposition and base your decision on all the criteria of the job being applied for.

ISSUE: How do you determine whether a past criminal conduct exclusion is job related and consistent with business necessity?

Answer:  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 the particular position. To analyze the past criminal conduct of an applicant to determine whether a past criminal conduct exclusion is job related and consistent with business necessity an employer must develop a criteria that meets the EEOC three pronged Green test below.  The results of the Green test will constitute thecriteria for purposes of analyzing an applicant for hire or retention.

The employer must develop a targeted screen considering at least:

1.             The nature of the crime.

For example, in relationship to employees and contractors going into customer’s homes, a screen needs to determine whether a specific crime may be relevant to concerns about risks in a particular position.  This section will have a bearing on criteria number three (3) below as to how severe the past criminal offense was as related to what is the nature of the job sought.  The EEOC does not provide a litmus test or provide each crime for which risk may be posed as a result of past criminal conduct and when an exclusion may be made for a particular position based on past criminal conduct of the applicant. 

2.                     The time elapsed.

The EEOC states that there is a time at which a former criminal is no longer any more likely to recidivate than the average person.  However, the EEOC gives no litmus test for how much time should elapse for a given criminal act or crime.  The EEOC does state that it is recognized that the amount of time that has passed since a criminal conduct has occurred is probative of the risk he poses in the position in question.  The EEOC states that “whether the duration of a criminal exclusion will be sufficiently tailored to satisfy the business necessity standard will depend on the particular facts and circumstances of each case.”  That explanation does not provide specific guidance.  This is an area that may be tricky.  The Commission will assess relevant evidence when making a determination of disparate impact, including applicant flow information maintained pursuant to the Uniform Guidelines on Employee Selection Procedures, workforce data, criminal history background check data, demographic availability statistics, incarceration/conviction data, and/or relevant labor market statistics.  The EEOC will look to whether the policy or practice deprives a disproportionate number of Title VII-protected individuals of employment opportunities.

3.                     The nature of the job.

For example, in the situation where an employee or where an independent contractor sends an employee or a sub-contractor to a home to performs a demonstration, sale, installation or service there is arguably much greater risk to a customer and to the provider company and/or the independent contractor company.  In such a situation, there is case law that provides direction:

From the line of Kirby Vacuum Cleaner cases we learn the following:

The Peculiar Risk Doctrine:  When there is:

A.   A risk peculiar to the work to be done, and;

a.     The provider allows an individual to come into contact with a customer in a particularly vulnerable situation.

B.    A risk arising out of the character of the work, OR;

a.     The worker gains access to the customer’s based on the provider’s good name and reputation.

C.    A risk arising out of the place where the work is to be done.

a.     Here the work to be done is in a home where the courts indicate that customers are most vulnerable and where a customer has a reasonable expectation to assume that the provider will not send in an intruder that may pose a risk of harm.

If these elements exist, then it means that a reasonable provider does or should recognize the necessity for SPECIAL PRECAUTIONS regarding who is sent to the home.  The main precaution is to:

Perform a criminal background investigation looking for information that “suggests a risk to the customer must be performed”.  The criminal background investigation is to help eliminate possible threats or circumstances from occurring to a customer as a result of the employer or provider putting a worker in contact with a customer where the worker may pose a risk of harm to the customer.  If the employer or provider knew, or should have known, about a danger or peril and did not use reasonable precautions to remedy that danger or peril, then the employer or provider is more likely to be liable for resulting damages. (Martinez v. Woodmar IV Condominiums Homeowners Ass'n, Inc., 189 Ariz. 206, 211, 941 P.2d 218, 223 (1997). 

**Note.  The example above is for a job that has a more serious risk because the worker is going into a customer’s home.  The analysis will be different for other jobs because the analysis goes to the nature of the job.  For example, if a worker has little contact with customers, company money, other employees, in an environment where the worker is under constant supervision and surveillance or where the job has little risk involved where the worker can hurt someone else or cause damage, then the past criminal conduct and the job sought would require a less scrutinized analysis for that position.

4.              The employer provides an opportunity for an individualized assessment for the applicant excluded by the screen to determine whether the policy as applied is job related and consistent with business necessity.

ISSUE:  What is an Individualized Assessment?

Answer:  The individual assessment should consist of the following

1. Notice to the applicant that he has been screened out because of a criminal conviction or event;
2. An opportunity for the individual to demonstrate that the exclusion should not be applied due to his particular circumstances, and;
3. Consideration by the employer as the whether the additional information provided by the individual warrants an exception to the exclusion and shows that the policy as applied is not job related and consistent with business necessity.

The applicant may include a showing of the following:

A.            The facts or circumstances surrounding the offense or conduct;

B.             The number of offenses for which the individual was convicted;

C.             Older age at the time of conviction, or release from prison;

D.            Evidence that the individual performed the same type of work, post conviction, with the same or a different employer, with no known incidents of criminal conduct;

E.             The length and consistency of employment history before and after the offense or conduct;

F.             Rehabilitation efforts, e.g., education/training;

G.            Employment or character references and any other information regarding fitness for the particular position; and

H.            Whether the individual is bonded under a federal, state, or local bonding program.

** The EEOC states: “Although Title VII does not require individualized assessment in all circumstances, the use of a screen that does not include individualized assessment is more likely to violate Title VII.”  In other words, an employer better follow the EEOC dictates an provide the applicant an opportunity for an individualized assessment to help avoid discrimination.

Importantly, if the individual does not respond to the employer’s attempt to gather additional information about his background, the employer may make its employment decision without the information.

In summation, each applicant requires a thorough analysis and investigation regarding the past criminal conduct information.

REMEMBER: The screen for past criminal conduct should be narrowly tailored to identify criminal conduct with a demonstrable tight nexus to the position in question.   

It is obvious that there is a fine line to walk to protect the interests of the applicant, customer, provider, contractor and employer. 

By:  J. D. Dobbins Attorney at Law

Attorney for CRIMSHIELD, INC.