EEOC’s New Guidance Regarding The Use Of Arrest And Conviction Records: Background Screening Practices Take The Foreground

Wednesday, November 21, 2012 - 17:40

On April 25, 2012, the United States Equal Employment Opportunity Commission (the “EEOC”) issued its Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act of 1964 (the “Guidance”). Although the Guidance is not legally binding, it was designed to be a resource for employers, applicants, employees and the EEOC enforcement staff in assessing whether an employer’s use of criminal history may violate Title VII. We discuss below the Guidance as well as restrictions on the use of criminal and arrest records under New York law.

The Guidance’s Focus On Disparate Impact

The Guidance begins by noting a significant increase in the past 20 years in the number of people in the working age population who have criminal records. The Guidance further emphasizes that arrest and incarceration rates are particularly high for African-American and Hispanic men, noting that individuals in these protected classes are arrested at rates that are two to three times those of the general population. While acknowledging that having a criminal record is not a protected category under Title VII, the Guidance clearly expresses the EEOC’s concerns that reliance on criminal records creates barriers to employment that may violate Title VII. The Guidance focuses on disparate impact claims based on a neutral criminal record screening policy or practice that has the effect of disproportionately screening out a Title VII-protected group.

To avoid liability for disparate impact claims under Title VII, the employer must show that the policy or practice is “job related for the position in question and consistent with business necessity.” The EEOC considers an exclusion based on an arrest, in itself, not job related and consistent with business necessity. However, the Guidance also provides that “an employer may make an employment decision based on the conduct underlying the arrest if the conduct makes the individual unfit for the position in question.” Thus, according to the EEOC, an employer can conduct an investigation regarding the circumstances surrounding an arrest and elect to take adverse action (e.g., a decision not to hire) based on the results of the inquiry.

In its discussion of conviction record screening policies that have a disparate impact, the Guidance states that an “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.” With regard to such screening policies, the EEOC has announced that an employer can “consistently meet the ‘job-related and consistent with business necessity’ defense” if it develops a “targeted screen.” The “targeted screen” test involves a two-step process. First, the employer must determine whether the employee should presumptively be barred from the position “considering at least the nature of the crime, the time elapsed, and the nature of the job,” and, second, it must provide an opportunity for an “individualized assessment” of the individual.

As explained in the Guidance, an “individualized assessment” means that an employer informs the individual that he or she may be excluded because of past criminal conduct and provides an opportunity for the individual to demonstrate that the exclusion does not properly apply. The individual’s showing may include information that he or she was not correctly identified in the criminal record, or that the record is otherwise inaccurate. Other relevant individualized evidence includes, for example:

  • 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 (because recidivism rates decrease at higher ages);
  • 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 or 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.

The Guidance advises that “Title VII does not necessarily require individualized assessment in all circumstances” but indicates that individualized assessments can help employers avoid liability by allowing them to consider more complete information on individual applicants or employees as part of a policy that is job related and consistent with business necessity.

The Guidance acknowledges the interplay with other federal laws and regulations and explains that “[c]ompliance with federal laws and/or regulations is a defense to a charge of discrimination.” The Guidance highlights the fact that individuals with specific convictions may be barred from certain industries or positions in both the private and public sector. Among the examples of such positions and industries listed in the Guidance are federal law enforcement officers, bank employees, and certain positions in the financial industry.

The Guidance offers best practice tips for employers that include the following:

  • eliminate policies that impose an absolute bar to employment based on any criminal record (whether limited to convictions or including arrests);
  • train hiring officials, managers and other decision makers regarding appropriate use of criminal records in hiring and other employment decisions;
  • develop a narrowly tailored written policy and procedure for screening to ensure that exclusions are job related and consistent with business necessity;
  • limit inquiries about criminal records to those that are job related and consistent with business necessity; and
  • keep information about applicants’ and employees’ conviction records confidential.
Restrictions Under New York Law

Employees in New York are already subject to various restrictions in the use of criminal records under Article 23-A of the Correction Law. In New York, employers may lawfully inquire about past criminal convictions and may deny employment to an applicant or employee based on an individual’s conviction record if either: (1) there is a direct relationship between the criminal offense and the employment sought or held by the individual; or (2) employing the individual would “involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.” N.Y. Corr. L. § 752.

Section 753 of the Correction Law lists factors that an employer “shall” consider in making this determination: (1) the state’s public policy of encouraging employment of persons previously convicted of a crime; (2) the specific duties and responsibilities necessarily related to the employment sought; (3) the bearing, if any, the past criminal offense will have on the individual’s fitness or ability to perform one or more of such duties or responsibilities; (4) the time that has passed since the occurrence of the criminal offense; (5) the age of the person at the time the crime was committed; (6) the seriousness of the offense; (7) any information produced by the person regarding rehabilitation and good conduct; (8) the employer’s interests in protecting property and the safety and welfare of specific individuals or the general public; and (9) whether a certificate of relief from disabilities or a certificate of good conduct was issued to the individual.

Section 380-g of New York’s General Business Law requires that, when a consumer report contains criminal conviction information, the employer that requested the report provide the subject of the report a copy of Article 23-A. In addition, upon request of any individual with a prior conviction who has been denied employment, an employer must furnish that individual a written statement of the reasons for the denial of employment. N.Y. Corr. L. § 754.

Decisions Based Upon Arrest Records

New York law views arrests very differently from convictions, and the use of arrest records in New York is even more limited. Under the New York State Human Rights Law, it is generally unlawful for employers to act upon or even to inquire about an employee’s prior arrest record if the arrest was resolved in favor of such individual. N.Y. Exec. L. § 296.16. It also is generally impermissible to ask about arrests that resulted in a youthful offender adjudication or certain convictions that have been sealed. Employers may not ask job applicants to disclose such arrests and may not take adverse action against an applicant or employee based on such arrests.

Neither the New York State Human Rights Law nor the Correction Law provides any protection to those against whom a criminal charge is pending (i.e., not yet resolved). However, the EEOC Guidance does not distinguish between pending arrests and arrests that did not result in convictions; thus, employers should consider the EEOC’s recommendation that adverse action should not be taken against an individual with a pending arrest unless, after an inquiry into the conduct underlying the arrest, the employer determines that the conduct makes the individual unfit for the position in question.

Considerations Fo​r Employers

While the Guidance is not legally binding, it provides a strong indication of the factors the EEOC considers important in determining whether employment decisions based on an individual’s criminal history may violate Title VII. Therefore, employers should review the Guidance and note the following main principles:

  • employers should not take adverse action based solely on any arrest that resulted in a dismissal or acquittal;
  • employers should avoid policies that impose an absolute bar to employment based on any conviction (except where federal statutory or regulatory requirements prohibit employment of individuals with certain convictions); and
  • employers should consider criminal history on an individual case-by-case basis rather than applying a blanket approach. 

Kevin B. Leblang is a Partner and Head of Kramer Levin’s Employment Law department. He concentrates exclusively on representing management on employment law litigation and employment law matters. Robert N. Holtzman, also a Partner, concentrates exclusively on representing management in employment law matters.


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