the eeoc's renewed focus on criminal background checks

© 2013 Armstrong Teasdale LLP

The EEOC’s Renewed Focus on Criminal Background Checks

Presented by: Jovita Foster



A Majority of Employers Conduct Criminal Background Checks on Employees and Applicants

92% of employers conduct criminal background checks on employees/applicants according to the Society of Human Resource Management. Criminal records are now online Research shows employers conduct background checks for

some or all jobs and are often unwilling to consider hiring individuals who have been arrested or incarcerated


What Laws are Implicated?

Title VII of the Civil Rights Act of 1964, as amended Fair Credit Reporting Act


Disqualifying Candidates with Criminal Records: An Early Civil Rights Issue

Since at least 1969, the EEOC has received, investigated, and resolved employment discrimination charges alleging that employers used criminal records in a discriminatory way, most often based on race or national origin.


Disqualifying Candidates with Criminal Records: An Early Civil Rights Issue

In its earlier policy statements & guidance, the EEOC’s analysis focused heavily on disparate treatment discrimination. The EEOC discouraged employers from inquiring about arrests

in employment decisions, due to the risk of disparate treatment (adverse impact) on certain minorities; and The EEOC encouraged employers to look at the circumstances

underlying a record of a criminal conviction in relation to the employer’s job prior to making an adverse employment decision.


New EEOC Guidance Focuses on Disparate Impact Discrimination

New Guidance: EEOC Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions (No. 915.002) The majority of the new EEOC Guidance focuses on the EEOC’s

belief that African Americans and Hispanics are being subjected to disparate impact discrimination because of employers’ improper use of criminal background screening.


El v. Southeastern Pennsylvania Transportation Authority, 479 F.3d 232 (3d Cir. 2007)

• Douglas El is a 55 year old African American man who was involved in a gang fight when he was 15, the fight resulted in another person’s death;

• El was convicted of second-degree murder;

• 40 years later, SEPTA hired El as a paratransit driver (responsible for driving individuals with physical and mental disabilities);

What Sparked the EEOC’s Renewed Focus?



• After hiring El, SEPTA learned that El was convicted of second degree murder

• SEPTA terminated El after learning of his conviction

• When deciding to terminate El, SEPTA relied on its policy against hiring any person ever convicted of a violent crime to work as a paratransit driver

• El sued SEPTA; in the lawsuit, he challenged his termination and SEPTA’s policy of excluding any applicant ever convicted of a violent crime from the job of paratransit driver



• The Court expressed “reservations” about SEPTA’s policy excluding any person convicted of a violent crime, no matter how long ago committed

• But - the District Court and the Court of Appeals affirmed summary judgment for SEPTA.


• Court’s Rationale – − Nature of the position of paratransit driver, with unsupervised

access to vulnerable adults, required SEPTA to exercise utmost care;

− No evidence from El that there is a point at which a former criminal is no more likely to recidivate than an average person; and

− The EEOC’s existing policy was too loose to be entitled to deference from the Courts.



New EEOC Guidance Focuses on Disparate Impact Discrimination

The majority of the new EEOC Guidance addresses the EEOC’s concerns of disparate impact discrimination of African Americans and Hispanics as a result of criminal background screening. Disproportionately high incarceration rates of African

Americans and Hispanics, particularly men. Use of criminal background screening results in disparate

impact discrimination against African American and Hispanics


Disparate Treatment Discrimination • An individual is treated differently in the terms and

conditions of his employment on the basis of his race, color, religion, sex or national origin.

Common Example: • Employer rejects an African American candidate convicted of

a non-violent misdemeanor offense, but has a history of hiring white candidates with comparable criminal records.

Quick Refresher – Disparate Treatment versus Disparate Impact



Disparate Impact Discrimination • Disparate impact discrimination occurs if:

− an employment practice causes a disparate impact on the basis of race, color, religion, sex or national origin and

− the employer fails to demonstrate that the challenged practice is “job related for the position in question and consistent with business necessity.”



Disparate Impact Discrimination • Facially neutral policy

• that has a disproportionately negative impact on a protected class.

Example: • When hiring laborers, the employer requires that the

successful applicants have a high school diploma. The diploma requirement screened out many more African Americans than whites, resulting in a disparate impact on African Americans based on race.


Disparate Impact Discrimination & Criminal Background Screenings

The EEOC has concluded that certain criminal record exclusions have a disparate impact based on race and national origin, particularly as to African Americans and Hispanics.


EEOC’s Statistics Supporting Disparate Impact on African Americans and Hispanics: According to the EEOC:

• In 2010, 28% of all arrests were African Americans, even though African Americans comprised approximately 14% of the population.

• In 2008, Hispanics were arrested for federal drug charges at three times the rate of the general population.

• African Americans and Hispanics are incarcerated at rates disproportionate to their numbers in the general population.


Arrest records should never be used to make an adverse employment decision. Arrest records may not show what happened after the arrest.

(Were charges filed? Were charges dismissed?) Even if prosecuted, people are innocent until proven guilty.

The EEOC’s Guidance: Arrests


The EEOC’s Guidance: Convictions

Employers should only consider convictions that are related to the job, and employers should have a time limit for considering old convictions. Convictions may be wrong. For example:

• personal identifying information may be inaccurate or confused;

• the offense may have been expunged; or

• the person may have entered into a diversionary program.


The EEOC Will Require Policy Changes & Settlements if it Finds an Employer’s Criminal Record Policy Violates Title VII

The EEOC investigated a charge of race discrimination against Pepsi, which alleged Pepsi’s criminal background check policy discriminated against African Americans EEOC’s investigation revealed that 300 African Americans

were adversely affected by Pepsi’s background check policy Pepsi required to pay $3.13 million & to make major policy

changes


What defenses do you have if the EEOC or an employee claims your

criminal records policy has a disparate impact on minorities?


The Employer’s Burden of Proof in Disparate Impact Claims

If the EEOC or an employee establishes that an employer’s policy or practice results in a disparate impact, the employer must prove that the policy or practice is job related and consistent with business necessity.


How Does an Employer Establish a Business Necessity Defense?

There are two ways an employer can show a criminal records policy is “job-related and consistent with business necessity.”

• Validation using Uniform Guidelines on Employee Selection Procedures; and

• A Targeted Screening Process


Option One: Validation

Validate criminal conduct exclusion using Uniform Guidelines on Employee Selection Procedures

• Complicated and Expensive

• Includes using statistical models

• Even the EEOC acknowledges this process has challenges


Option Two: Targeted Screening Process

A Targeted Screening Process considers: • The nature and gravity of the offense or conduct;

• The time that passes since the conviction; and

• Nature of the job held or sought.


More on the Targeted Screening Process

Factor One – What is the nature and gravity of the offense? • The offense is assessed by considering the harm caused by

the crime

• For example – theft causes property loss

• Misdemeanors are less severe than felonies

• Convictions for felony theft may involve deception, threat or intimidation (indicating a more serious offense)


Factor Two – How Much Time has Passed?

As time passes, the likelihood of recidivism declines No consensus on age of relevant criminal records EEOC studies range (6 to 15 years) Analysis of whether your policy contains an overly broad

exclusion (i.e., a time period that is too long given the likelihood of recidivism) will be made on a case-by-case basis


Factor Three – What is the nature of the job held or sought?

In order for a conviction to be relevant, the nature of the conviction should have some connection or link to the essential functions of the position at issue. Consider:

• The nature of the job duties (data entry, lifting boxes, driving; handling property or large sums of money)

• Circumstances under which duties are performed (what is the level of supervision? With whom will the employee work?)


Factor Three – What is the nature of the job held or sought?

Consider: • The environment where the duties will be performed (private

home, outdoors, or warehouse location?)

Linking the criminal conduct to the essential functions of the position in question may assist the employer in demonstrating that its policy or practice is job related and consistent with business necessity


Individualized Assessment

Would occur after the employer learns that an applicant/employee has a criminal conviction that may exclude him or her from a position Provides the applicant/employee an opportunity to

demonstrate that the exclusion does not apply to him or her Considers whether the individual’s additional information

shows that the policy as applied is not job related and consistent with business necessity Not required in all circumstances, but recommended by the

EEOC


Burden Shifts Back to the EEOC/Employee

If the employer successfully demonstrates that the policy or practice is job-related and consistent with business necessity the burden shifts back to the EEOC or employee EEOC or employee must show that there is a less

discriminatory “alternative employment practice” that serves employer’s goals, but the employer refused to adopt it


How Does the EEOC’s Guidance Affect Employers?

Proverbial “Catch 22” EEOC’s Guidance does not affect employer liability for

workplace violence, theft or fraud The EEOC’s Guidance does not affect employer liability for an

employer’s failure to comply with licensure requirements


How Does the EEOC’s Guidance Affect Employers?

The EEOC’s Guidance is not controlling on courts’ interpretation of Title VII But Courts and litigants may refer to the EEOC’s

interpretation for guidance based on its: • Thoroughness

• Validity of reasoning

• Consistency with earlier EEOC pronouncements


What can you do to ensure your criminal record policies and practices are not

deemed discriminatory?


Employer Best Practices

Eliminate policies or practices that exclude individuals from employment based on any criminal record Develop a policy that is narrowly tailored to screen applicants

and employees for criminal conduct • Identify essential job requirements • Identify actual circumstances under which jobs are

performed • Determine the offenses that may demonstrate unfitness for

performing such jobs • Determine the duration of exclusions for criminal conduct

(avoid overly broad time frames) • Include individualized assessment in your hiring process


Employer Best Practices

Record the justification for the policy and procedures at issue Note and keep a record of research considered in crafting the

policy and procedures When asking questions about criminal records, limit the

inquiries to records for which exclusions would be job related for the position in question and consistent with business necessity


Fair Credit Reporting Act

The Fair Credit Reporting Act (“FCRA”) governs background checks, such as criminal record checks and credit checks. The FCRA is enforced by the Fair Trade Commission (“FTC”). The FCRA encompasses background checks performed by third

party service providers known as “consumer reporting agencies” (“CRAs”), but not background checks performed by the employer itself.



The FRCA requires notice to the prospective employee that a background check will be performed. Before the employer can perform a background check, the

employee must provide written consent. The employer may condition employment on consent to a

background check.



Before you take an adverse action based on the background check, you must provide the applicant with a copy of the report of the background check and the FTC’s “Summary of Your Rights Under the Fair Credit Reporting Act” (which can be found on the FTC’s website, www.ftc.gov).

After you take an adverse action based on the background check, you must provide the applicant with notice of the adverse action, the name, address and telephone number of the CRA, and inform the applicant that he/she has the right to obtain a free copy of the background check report from the CRA and to dispute its accuracy.



Employers that do not comply with the FRCA could be held liable for damages, penalties, and attorneys’ fees.


Contact Information

Jovita Foster [email protected]

314.621.5070

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