Orange is the New Trap: Considering Arrest and Conviction Records in Employment Decisions

By Joan Vecchioli and Caitlein Jammo

The Equal Employment Opportunity Commission (“EEOC”) has ramped up its enforcement under Title VII in connection with employers’ use of arrest and conviction records in employment decisions. Title VII prohibits employment discrimination based on race, color, religion, sex, and national origin; Title VII does not regulate the acquisition of criminal history information.  Another federal law, the Fair Credit Reporting Act, establishes specific procedures for employers to follow when they obtain criminal history information from third party consumer reporting agencies.

Although having a criminal record is not listed as a protected basis in Title VII, the issue of whether an employer’s reliance on a criminal record to deny employment violates Title VII is determined using two analytic discrimination frameworks – “disparate treatment” and “disparate impact.”  Disparate treatment discrimination is where an employer treats applicants or employees differently on the basis of race, color, religion, sex, or national origin despite other applicants or employees having the same criminal history.  Disparate impact discrimination is where the policies of an employer disproportionately and unjustifiably affect individuals of a particular race or national origin.  Therefore, disparate impact discrimination can occur even when an employer is treating all employees and applicants uniformly.

Moreover, where a policy regarding arrest and conviction history has a disparate impact on a certain race or national origin, if the employer is able to show that the policy is “job related and consistent with business necessity” for the position in question, the policy will be considered lawful under the EEOC Enforcement Guidance.  The EEOC specifically identifies two instances in which an employer can show that its policy is job related and consistent with business necessity: (i) when the employer validates the policy via some data showing that the specific criminal history has some correlation with the position at issue; or (ii) the employer’s screening system looks at the nature of the crime, the time elapsed, and the nature of the position, and there is an opportunity for individualized assessment to determine if the policy, as applied, is job related and consistent with business necessity for the position.

The EEOC Enforcement Guidance provides elaboration upon prior standards, including the rule that any policy that excludes all individuals with criminal history constitutes disparate impact discrimination and is not job related or consistent with a business necessity.  The EEOC recommends the following practices for employers considering arrest and conviction records in making employment decisions:

• Remove any policy that excludes applicants or employees from employment based on any criminal record.
• Develop a narrowly tailored written policy for using criminal records for screening purposes by identifying essential job requirements, determining specific offenses that would mean the applicant/employee is unfit to perform his/her position, allow individualized assessments, and record the circumstances surrounding and the justifications for the creation of the policies.
• Train decision-makers on how to comply with Title VII and its prohibitions.
• Limit any questions or inquiries to information related to the position and consistent with business necessity.
• Always keep the criminal records of applicants and employees confidential.

The key to preventing your business from falling into this trap is to keep abreast of all changes in the regulatory landscape and seek advice from counsel to determine if your current policies and procedures for criminal background checks are compliant with applicable local, state, and federal laws.

The full text of the EEOC Enforcement Guidance is available at: http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm#VIII

Joan Vecchioli is a partner with Johnson Pope and is Board Certified in Labor & Employment Law.  Caitlein Jammo is an associate with Johnson Pope.