Is Criminal History a “Protected Class” Like Race or National Origin?

December 7, 2009

SEPTEMBER 2009

Is criminal history a “protected class” like race or national origin?

Title VII prohibits discrimination on the basis of race, color, religion, sex and national origin. It does not prohibit discrimination on the basis of criminal history. However, national data suggests that discriminating against applicants and employees with criminal records, while not “illegal” under federal law, does have a disparate impact based on race and national origin.

What is “disparate impact” discrimination?

Disparate impact discrimination is “negligent” or “unintentional” discrimination. It occurs when an employer’s facially neutral policy (e.g., a policy excluding applicants from employment based on certain criminal conduct) disproportionately impacts some individuals protected under Title VII (e.g., racial minorities).

Does this mean all criminal history exclusions are unlawful?

The answer to this question is “it depends.” In order to overcome a disparate impact challenge, an employer’s policy regarding criminal history must be “job related and consistent with business necessity.” In order to examine this standard, one must first distinguish arrests from criminal convictions.

Are exclusions based on ARREST records “job-related and consistent with business necessity”?

The EEOC takes the position that, unlike criminal convictions, arrests do not establish that criminal conduct has occurred (i.e., a person is “innocent unless proven guilty”). Consequently, exclusions based on arrest records are, in and of themselves, not “job related and consistent with business necessity.” However, an employer may make an employment decision based on the conduct underlying an arrest if the conduct makes the individual unfit for the particular position in question. Under these circumstances, an employer should investigate the conduct and give the individual a chance to tell his/her side of the story.

Are exclusions based on CRIMINAL CONVICTIONS “job related and consistent with business necessity”?

The updated guidance lists two circumstances in which criminal conviction exclusions will be “job related and consistent with business necessity.”

The first circumstance is where the employer validates the criminal conduct exclusion in accordance with the Uniform Guidelines on Employee Selection Procedures. This process typically involves examining social science data about criminal conduct as related to subsequent work performance, although the EEOC notes that such social science studies are rare at this time.

The second circumstance is where the employer develops a “targeted screen” that considers at least;

  1. the nature of the crime
  2. the time elapsed
  3. the nature of the job.

The EEOC also suggests an employer conduct an “individualized assessment” for those identified by the screen to determine if the policy is job related and consistent with business necessity as applied to those particular individuals. Evidence to be considered when conducting an individualized assessment includes:

  • The facts or circumstances surrounding the offense or conduct;
  • The number of offenses for which the individual was convicted;
  • Older age at the time of conviction, or release from prison;
  •  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;
  • The length and consistency of employment history before and after the offense or conduct;
  • Rehabilitation efforts (e.g., education/training);
  • Employment or character references and any other information regarding fitness for the particular position; and
  • Whether the individual is bonded under a federal, state, or local bonding program.

Once the employer determines its policy is “job related and consistent with business necessity,” has the employer satisfied its obligation?

Even if an employer’s policy or practice is job related and consistent with business necessity, the employer must still consider whether there is a less discriminatory alternative employment practice that serves the employer’s legitimate goals as effectively as the challenged policy or practice.

What about laws or regulations that conflict with Title VII?

The EEOC guidance clarifies that compliance with other federal laws and/or regulations that conflict with Title VII (e.g., federal laws and/or regulations that prohibit individuals with certain criminal records from holding particular positions or engaging in certain occupations) is a defense to a Title VII discrimination charge.

On the other hand, state and local laws and regulations are preempted by Title VII if they “purport to require or permit the doing of any act which would be an unlawful employment practice” under Title VII.

What are some suggested “best practices” for employers?

The EEOC’s updated guidance suggests employers:

  • eliminate policies or practices that exclude people from employment based on any criminal record whatsoever.
  • train hiring managers on avoiding unlawful discrimination and the proper use of criminal history in making employment decisions.
  • develop a narrowly-tailored written policy and procedure for screening applicants and employees for criminal conduct.
  • do not ask about criminal convictions on job applications.

According to the EEOC, an employer is more likely to assess an applicant’s criminal history objectively when it is already familiar with the applicant’s qualifications and experience. Therefore, the EEOC believes employers are better off asking about criminal history later on in the application process.

  • if and when asking questions about criminal records, limit inquiries to records for which exclusion would be “job related and consistent with business necessity.”
  • keep criminal history information confidential and only use it for the purpose for which it was intended.

What is the “bottom line”?

While the EEOC’s enforcement guidance is not technically “legally binding,” it does reflect the EEOC‘s enforcement position. Additionally, many courts give deference to the EEOC‘s enforcement guidance when analyzing federal employment discrimination cases. Therefore, employers inquiring about applicants‘ criminal records and/or performing criminal background checks should pay close attention to the updated guidance.

Additionally, while Title VII preempts state and local laws and regulations that are less stringent than federal law, employers must continue to comply with state and local laws and regulations that offer employees with a criminal history greater protection than Title VII.

Employers requesting criminal history information from applicants and/or performing criminal background checks should consult with experienced employment counsel to determine how best to minimize legal risk in light of this ever-evolving area of the law.

Title VII prohibits discrimination on the basis of race, color, religion, sex and national origin. It does not prohibit discrimination on the basis of criminal history. However, national data suggests that discriminating against applicants and employees with criminal records, while not “illegal” under federal law, does have a disparate impact based on race and national origin.

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