On April 25, the Equal Employment Opportunity Commission issued new guidance on employers’ use of conviction and arrest records in employment decisions. Although the EEOC says that this new guidance does not change its long-standing position on the topic, there are some items worth noting.
Recognizing that a disproportionate number of African-American and Hispanic men are arrested and convicted of crimes, the EEOC and courts long ago determined that an employer’s use of criminal history information can lead to unlawful discrimination. To avoid or defend against such claims, employers must show that the use of conviction and arrest records is job-related and consistent with business necessity.
The EEOC’s new guidance says that job-relatedness can be shown by the employer’s use of either the Uniform Guidelines on Employee Selection Procedures or a targeted screening policy that uses individual assessments. Employers are expected to individually assess factors such as: the nature and gravity of the offense, the time that has passed since the offense, conduct or completion of sentence, the nature of the job held or sought, the number and nature of convictions, the individual’s age at the time of the conviction, the individual’s rehabilitation efforts, character, and job references. If the employer decides the applicant or employee is unsuitable for hire or retention, the EEOC expects the employer to give him or her an opportunity to provide additional information or an explanation before making its ultimate decision.
Not surprisingly, the EEOC considers use of arrest records to be very problematic and says that arrests alone should not be the basis for employment decisions. Also not surprising is the EEOC’s dislike of blanket employer policies excluding applicants from positions based on certain types or levels of convictions without an individualized assessment. A surprising item coming out of the guidance is the EEOC’s interpretation that since Title VII preempts state and local law, this guidance is controlling over state or local laws conflicting with it. This may mean that an employer following a state or local law prohibiting hiring of an applicant with a felony conviction for certain jobs could still be sued for discrimination under federal law.