Don't Get Cuffed by Criminal Records

Many employers use criminal background checks to filter job candidates, and while this type of information can be useful in applicant screening, employers must be careful to avoid violating federal law, which protects employees from discrimination on the basis of race, color, religion, sex or national origin.  

In April, the Equal Employment Opportunity Commission (EEOC) published its latest guidelines for employers using criminal history information when making employment-related decisions. There are two types of discrimination prohibited under federal law (Title VII):

First, employees and job applicants are protected from different or discriminatory treatment based on their membership in a protected class. For example, an employer cannot make a decision not to interview or hire someone based on their sex.

Second, employers are prohibited from using a policy or practice that disproportionately affects members of a protected class. This is where employers can run afoul of federal law by using criminal records. A seemingly neutral policy, such as not hiring applicants based on past criminal conduct, can disproportionately affect individuals protected under Title VII.

As the EEOC notes, statistics show that arrest and incarceration rates are particularly high for African American and Hispanic men, who are arrested at a rate that is two to three times that of the general population. Therefore, a policy or practice of rejecting candidates solely on the basis of a criminal record is discriminatory because it has a disparate effect based on color, race and national origin.

While certain states, including Massachusetts, have specific rules regarding the timing and scope of inquiries into criminal background information, Title VII does not regulate the acquisition of criminal history. Rather, Title VII comes into play when employers seek to use this information to justify a decision relating to hiring, job promotion, performance management, and retention. The EEOC states that any decision regarding the use of criminal history information must be job related and consistent with business necessity.

Arrest vs. Conviction

The EEOC makes an important distinction between the use of arrest records and conviction records. An arrest does not establish that any criminal conduct has occurred. Therefore, employment decisions relating to the existence of a prior arrest alone cannot be used to deny employment. Criminal convictions, on the other hand, will generally serve as evidence that the person engaged in a particular conduct, and may be relied upon for screening applicants or employees.  

However, the existence of the conviction is not enough to meet the job-related and consistent with business necessity standard. In order to meet this standard, the employer must determine that the conviction meets a conduct exclusion under the Uniform Guidelines on Employee Selection Procedures; or develop an individualized assessment that considers the nature of the crime, the time elapsed, and the nature of the job. This guidance is consistent with EEOC past practice, requiring employers to consider the circumstances of each conviction in light of the job position, rather than adopting a blanket policy that may disparately impact a protected class.

The EEOC recommends employers eliminate inquiries regarding convictions on job applications as a best practice. But as long as an employer considers the existence of a particular conviction as part of the individualized assessment, there is nothing unlawful about retaining this question on your job application.

Employers should review background-screening policies and practices and make adjustments to ensure that these inquiries can be justified as job related and consistent with business necessity. Employers should also train recruiters and managers regarding the lawful use of criminal history
information for making hiring decisions.

While some people were concerned that the new enforcement guidance issued in April would constitute a radical departure from previous EEOC policy, for the most part, the guidance is simply a restatement of the commission's long-standing position on employer use of criminal background information.

That said, in light of the new guidance, employers should anticipate greater oversight by the EEOC. While the guidance itself is not a legal mandate, it does provide employers with greater understanding about how the EEOC will analyze charges, and you can bet that plaintiffs and their attorneys will attempt to use the guidance in their favor as they pursue actions against employers.

Colleen C. Karpinsky is vice president in charge of legal for Dyn of Manchester. Charla Bizios Stevens is a director and shareholder in the Employment Practice Group of the McLane Law Firm, with offices in Concord, Manchester and Portsmouth as well as Woburn, Massachusetts.