Finally, criminal background checks updated

The Equal Employment Opportunity Commission’s (EEOC) guidance on criminal background checks in hiring issued in April was necessary to update guidance last issued more than 20 years ago, according to former commission vice chair Leslie Silverman, now a partner at Proskauer Rose LLP in Washington, D.C.

Among  reasons for the update are the increase in the number of people with criminal records in the working-age population, employers’ increased access to criminal history, and recent studies that have found a number of criminal record databases are inaccurate or incomplete, she said.

In a webcast May 3 sponsored by the Society for Human Resource Management, Silverman offered scenarios to clarify how an employer’s use of a person’s criminal history in making employment decisions could violate the Civil Rights Act’s Title VII prohibition against employment discrimination.

“It does not prohibit the use of background checks,” she said of the EEOC guidance.

The guidance approved 4-1 on April 25 consolidates and supersedes previous EEOC policy statements on using criminal history to make employment decisions and addresses the difference between arrest and conviction records. Among points Silverman discussed were:

• The new guidance acknowledges that Title VII of the Civil Rights Act does not directly protect individuals with criminal records.

• Disparate treatment and the disparate impact of using criminal records in employment decisions.

• Job-related and business-necessity defenses in making employment decisions based on criminal history. This relates to the nature or gravity of the candidate’s offense or conduct; the time elapsed since the offense, conviction and/or completion of the sentence occurred; and the nature of the job the candidate applied for or held. The EEOC guidance emphasizes that arrests and convictions should be treated differently, Silverman stressed.

• Whether an employer’s reliance on criminal records to deny employment violates Title VII depends on whether that reliance is part of employment discrimination based on race, national origin or other protected classes. For example, basing a decision not to hire an African American on that candidate’s criminal history, but hiring a non-African American candidate with a similar criminal history and comparable skills would show disparate treatment, she explained.

Disparate impact deals with the text of an employer’s policy and how the organization implements that policy. What offenses or classes of offenses were reported to the employer by the agency it uses to do background checks? Does the employer look at convictions regardless of whether those convictions were sealed or expunged? Does the employer look at arrests, charges and data bases that reveal arrests that did not result in conviction?

Under the EEOC guidance, arrests are not grounds for excluding a candidate because arrests do not establish that criminal conduct occurred. However, an arrest may trigger an inquiry into whether the conduct underlying the arrest justifies adverse employment action, according to Silverman.

An employer may base a hiring decision on the underlying conduct if the employer makes an inquiry and determines that the conduct makes the individual unfit for the position in question. Underlying conduct, not the arrest itself, is relevant, Silverman said.

“People with a criminal background are not a protected class,” said Lawrence Lorber, Silverman’s colleague at Proskauer Rose, during the webcast’s question-and-answer session. Silverman shared the following employer best practices the EEOC appended to its guidance, which she called “fairly unusual for the agency to do.”

• Eliminate policies that impose an absolute bar to employment that is based on any criminal record.

• Train hiring mangers about the appropriate use of criminal history in employment decisions.

• Refine job screening procedures to ensure that they are job related and consistent with business necessity.

• Limit inquiries into criminal history to those for which exclusion would be job related and consistent with business necessity.

• Keep information about applicants’ and employees’ criminal history confidential.

While not part of the guidance, the best practices offer the federal agency’s “view on how employers should respond to the guidance,” she said, “recognizing an employer is not legally required to [follow] a best practice.”

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