EEOC RELEASES NEW GUIDELINES ON ARREST & CONVICTION RECORDS

by Art Gutman Ph.D., Professor, Florida Institute of Technology


The release (at http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm) is dated 4/25/12 and is the first update on arrest and conviction records since 1990. The focus is on discrimination based on race and national origin as proscribed in Title VII. Overall there are four major themes to focus on, including: (1) a distinction between arrests and conviction; (2) a distinction between disparate treatment and adverse impact; (3) the importance of individualized assessment based on Green v. Missouri Pacific Railroad (or MoPac) (1977) [549 F.2d 1158]; and (4) best practices.  I will outline each below. It is recommended that readers interested in this topic read the guidance in its entirety.

On Theme 1, it is noted that an arrest does not, in itself, imply a job related reason for exclusion. However employers “may make an employment decision based on the conduct underlying an arrest if the conduct makes the individual unfit for the position in question.” In contrast, conviction records that will “usually serve as sufficient evidence that a person engaged in particular conduct.” However, there is the caveat that “there may be reasons for an employer not to rely on the conviction record alone when making an employment decision.” In my opinion, this latter caveat relates to a large extent on Theme 3.

On Theme 2, it would be disparate treatment if a conviction were used to exclude a minority but not a non-minority applicant. Adverse impact, on the other hand, involves a facially neutral policy of excluding all applicants with (say) felony convictions that disproportionately impacts minorities. As with adverse impact for other reasons (e.g., ability tests), the employer must show that the exclusionary policy is job related and consistent with business necessity. The EEOC suggests that the Uniform Guidelines on Employee Selection Procedures (UGESP) apply if there is “data or analysis about criminal conduct as related to subsequent work performance or behaviors.”

On Theme 3,  MoPac 

had a policy of excluding all individuals with convictions other than minor traffic offenses. Buck Green was excluded because he refused induction into the military and served 21 months in prison. The District Court for the Eastern District of Missouri ruled summary judgment for MoPac, but the 8th Circuit reversed, ruling:

We cannot conceive of any business necessity that would automatically place every individual convicted of any offense, except a minor traffic offense, in the permanent ranks of the unemployed. This is particularly true for blacks who have suffered and still suffer from the burdens of discrimination in our society. To deny job opportunities to these individuals because of some conduct which may be remote in time or does not significantly bear upon the particular job requirements is an unnecessarily harsh and unjust burden.

Based on this case, the EEOC points to three “Green” factors to be considered when there is no validation study, including (a) the “nature and gravity of the offense or conduct” (assessed in terms of the harm caused by the offense); (b) time passed since “conduct and/or completion of the sentence” (emphasizing that risk of recidivism declines over time); and (c) “nature of the job held or sought” (including type of job, level of supervision, and job environment).

Finally, on Theme 4 (best practices), the EEOC recommends that in general, employers should eliminate exclusionary policies based on criminal records and train decision-making officials on Title VII proscriptions on employment discrimination. Employers are further advised to develop a policy that:


·   Is a narrowly tailored procedure for screening applicants and employees for criminal conduct.
·   Identifies essential job requirements and the actual circumstances under which the jobs are performed.
·   Determines specific offenses that may demonstrate unfitness for performing such jobs.
·   Identifies criminal offenses based on all available evidence.
·   Determines duration of exclusions for criminal conduct based on all available evidence.
·   Includes individualized assessment.
·   Records the justification for the policy and procedures.
·   Keeps records relating to consultations and research considered in crafting the policy and procedures.
·   Trains managers, hiring officials, and decision-makers on how to implement the policy and procedures consistent with Title VII.
·   Limits inquiries to records for which exclusion would be job related for the position in question and consistent with business necessity.
·   Keeps information about applicants and employees criminal records confidential. Only use it for the purpose for which it was intended.


    Stay up-to-date with DCI Alerts, sign up here:

    Advice, articles, and the news you need, delivered right to your inbox.

    Expert_Witness_1st_Place_badge

    Stay in the Know!