If you have been receiving the same amount of emails and phone calls that I have then you may appreciate the following “Executive Summary” of the information.

I apologize for the length of this Blog up front. It has been an informative couple of weeks with the Updated Criminal Record Guidance and now the Quayle Amendment and then further support from the Chamber of Commerce.

I have compiled information from several sources including Littler Mendelson, Arnall Golden Gregory LLP, The National Association of Professional Background Screeners, Clark Hill, Seyfarth Shaw and the Chamber of Commerce.

EEOC:

Background Data

• EEOC describes the various public and private sources for obtaining criminal records.

Intentional or “Disparate Treatment” discrimination

• Employer must apply its screening standards in an even-handed manner as between similarly situated applicants of different racial and ethnic backgrounds.

“Disparate Impact” discrimination

• Title VII does not protect ex-offenders as a protected class per se, unlawful discrimination may result from the administration of a facially-neutral policy or procedure.
• An employer may show, by competent evidence, that its policy in fact does not result in a disparate impact
  • That in the employer’s particular geographic area, African American and/or Hispanic men are not arrested and convicted at disproportionately higher rates.

Defending a criminal record screening policy

• Arrest records vs. Conviction records
  • Arrest does not establish that the underlying criminal conduct occurred
    • EEOC concedes the possibility that some types of underlying conduct resulting in arrest may “make the individual unfit for the position in question.” In those limited cases, the employer may rely on the conduct.
    • Conviction “will usually serve as sufficient evidence that a person engaged in particular conduct
      • However take Caution: “there may be evidence of an error in the record, an outdated record, or another reason for not relying on the evidence of a conviction.”
• Conviction record screening policies
  • “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 a particular position.”
  • The EEOC offers two examples where “employers will consistently meet the ‘job related and consistent with business necessity’ defense.”
    • Employer “validates” the criminal conduct screen for the position at issue by relying on the three different approaches set forth in the Uniform Guidelines on Employee Selection Procedures
    • Employer may deploy a “targeted screen” that considers the three Green factors (derived from Green v. Missouri Pacific Railroad, 549 F.2d 1158 (8th Cir. 1975)

1)     The nature and gravity of the offense

2)     The time that has passed since the offense and/or completion of the sentence

3)     The nature of the job held or sought

An “individualized assessment” should be made by an employer in virtually all instances before the employer disqualifies an individual for employment based on past criminal conduct

1)     The facts or circumstances surrounding the offense or conduct

2)     The number of offenses for which the individual was convicted

3)     Older age at the time of conviction or release from prison

4)     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

5)     The length and consistency of employment history before and after the offense or conduct

6)     Rehabilitation efforts, e.g., education and training

7)     Employment or character references and any other information regarding fitness for the particular position

8)     Whether the individual is bonded under a federal, state, or local bonding program

• Where an applicant or employee does not respondto requests for such information, the employer may make its employment decision without the information.
  • The EEOC also acknowledges that an employer may be able to justify a targeted criminal records screen solely under the Green factors (i.e., one without an individualized inquiry), but only where the targeted records screen is “narrowly tailored to identify criminal conduct with a demonstrably tight nexus to the position in question.”

1)     Inform the applicant that he or she may be excluded based on the past criminal conduct

2)     Provide an opportunity to the individual to establish that the exclusion should not apply

3)     Consider whether the individual assessment shows that the policy should not be applied to the applicant

• The guidance recognizes that some state and local laws may restrict or prohibit the employment of individuals with records of certain criminal conduct.
  • EEOC’s view: Title VII preempts state and local laws if they “purport to require or permit the doing of any act which would be an unlawful employment practice under Title VII.”
  • The EEOC takes the position that if an employer’s exclusionary policy or practice is not job related and consistent with business necessity, the fact that it was adopted to comply with a state or local law or regulation will not shield the employer from Title VII liability.

Employer Best Practices (Section VIII, Employer Best Practices.)

• Create a “narrowly tailored written policy and procedures for screening for criminal records.”
  • Employers must identify essential job requirements and the “actual circumstances under which the jobs are performed,”
  • Determine the specific offenses that may demonstrate unfitness for performing such jobs,
  • Determine the duration of exclusions for criminal conduct (including an individualized assessment).
  • Recording the justification for the policy and procedure
  • Provide related training and education to managers, hiring officials and decision makers
  • Maintain criminal record information in a confidential manner.

Conclusion

• Employers that use or are considering using criminal records to screen applicants or employees should consider the following:
  • Employers who want to assess potential disparate impact risks should consider conducting a privileged review of their criminal record-based screening policies and procedures to help identify areas of opportunity in terms of fortifying the policies and procedures as defensible under Title VII.
  • Employers should continue to be mindful of, and comply with, the various laws that impact the use of criminal records in addition to Title VII, including state fair employment laws and the federal and state fair credit reporting laws, such as the FCRA.

Quayle Amendment

Congress considers the Commerce, Justice, State and Independent Agencies FY 2013 Appropriations bill (CJS).

The Senate inserted report language in the bill, which can be found on page 114 and 115, directing the EEOC to share the guidance prior to issuance.

• • The EEOC has already partially disregarded this instruction by issuing the criminal records guidance without stakeholders being able to actually view the guidance.  The report language also instructs the EEOC to publically circulate any credit guidance to stakeholders.

The CJS appropriations bill is pending a vote on the floor in the Senate and that could come as early as this month.

In the House, an amendment may be introduced to the CJS bill (H.R. 5326) as early as today which would de-fund the EEOC from implementing, administrating or enforcing the EEOC’s guidance on criminal records.

In a related scenario, the Administration is threatening a veto of the CJS bill over EEOC concerns.

And just when you thought I was done:

FAQ’s

  Is the updated enforcement guidance now “the law”?

• The guidance represents the Commission’s construction of Title VII. The federal and state courts are not literally bound by and do not have to “defer” to the guidance. Indeed, the EEOC issued this guidance in part because of criticism of its prior guidance as unpersuasive by the U.S. Court of Appeals for the Third Circuit. That said, it is a certainty that the Commission will rely on its guidance in administrative enforcement actions, and at least some courts are likely to defer to the guidance based on the EEOC’s role in enforcing Title VII since the statute’s enactment in 1965.

Did the EEOC prohibit employers from asking about criminal records on employment applications or early in the hiring process?

• No. The guidance notes that some states require employers to wait until late in the hiring process to ask about conviction records, but the EEOC only “recommends” that employers not ask about convictions on job applications. If employers do so, however, the EEOC advises that such inquiries be “limited to convictions for which exclusion would be job related for the position in question and consistent with business necessity.”

Did the EEOC prohibit employers from considering criminal records in hiring and employment decisions?

• No. The EEOC takes the position that employers should be circumspect in using criminal records, based largely on the national data concerning disproportionate arrest and conviction rates, but does not purport to outright prohibit employers from considering criminal records.

Is the EEOC going to presume disparate impact in its investigations?

• The EEOC stops short of saying that it will presume a disparate impact from the use of arrest and/or conviction data, but does state that the national data “support” a finding with regard to race and national origin. An employer defending a charge of discrimination on this basis will have the opportunity to contest a finding of disparate impact based, for example, on data concerning local arrest and conviction rates for protected class members.

To satisfy the business necessity standard, is the EEOC requiring formal validation of a criminal record screening policy?

• No. The EEOC takes the position that formal validation is one way to satisfy the business necessity standard (though an unlikely one, based on significant data challenges), but states an alternative is to deploy what it calls a “targeted screen,” i.e., a screen that incorporates the Green factors, and in most instances provides an opportunity for an individualized assessment of potentially disqualified ex-offenders. The EEOC enumerates a list of factors to consider.

Did the EEOC address the significance of older criminal history information, a question that garnered significant attention at the Commission’s public meetings?

• Yes. One of the factors for determining whether use of conviction records is job related and consistent with business necessity, according to the EEOC, is the time that has passed since the offense, conduct and completion of the sentence. However, the EEOC does not suggest, much less define, a bright-line standard in this regard. In fact, the EEOC says that whether the “duration of an exclusion will be sufficiently tailored to justify the business necessity standard will depend on the particular facts and circumstances of each case.” The EEOC further notes that academic studies demonstrate the risk of recidivism declines over time, and these studies may inform an employer’s consideration of aged conviction or arrest data.

Can an employer still use a consumer reporting agency (or background screening company) to gather and report the criminal history information? 

• Yes. The guidance does not purport to prohibit employers from using consumer reporting agencies to provide background check reports, but does seem to warn employers away from using such agencies when they provide unreliable information.

Does it matter whether an employer is subject to regulatory requirements?

• Yes. The EEOC acknowledges that some employers are subject to regulatory requirements, but cautions employers about adopting screening policies that exceed those requirements.

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