The Equal Employment Opportunity Commission (“EEOC”) has finally issued long-awaited guidelines for employers who wish to use the results of a criminal background check to make hiring decisions. The guidelines are lengthy and convoluted, but some themes are clear.
Before discussing the themes in the guidelines, it is important to understand why the EEOC cares about criminal background checks. The reason is that, although employers are not barred by federal law from discriminating against a job applicant on the basis of the applicant having been convicted of a crime, the EEOC perceives that employers’ consideration of a criminal background when making hiring decisions has a disparate impact on groups that are protected under federal law. The groups that are of concern to the EEOC in this context are racial minorities and persons with certain national origins. The new guidelines were issued as a part of what the EEOC states is a continuing effort to level the playing field.
Here are the themes that can be found in the new guidelines.
- “Innocent until proven guilty” means that the employer must distinguish between an arrest and a conviction. Although the conduct leading to the arrest may be relevant to the hiring decision (and can in some instances justify further investigation by the employer), an arrest without a conviction should not carry the same weight as an actual conviction.
- The number and types of convictions are relevant, with more than one conviction providing a stronger basis for a refusal to consider the candidate for hire.
- The age of the conviction is relevant. For example, a conviction that occurred last year should carry more weight in the hiring consideration than a conviction that occurred ten years ago. And a conviction as a minor, followed by no further contact with law enforcement, should in many instances carry no weight in the hiring decision, because criminal conduct by a minor can often be explained away as “youthful indiscretion”. It should be clear that this guideline requires a detailed review of the facts surrounding any conviction. Unfortunately, this introduces the element of employer discretion in considering whether to hire an applicant who has been convicted of a crime. The employer needs to be able to articulate non-discriminatory reasons for any such exercise of discretion, taking into consideration the characteristics of not only this applicant but also those of any other applicants for the same position.
- The nature and gravity of the crime as compared with the job description must be taken into consideration. (This means that there should actually be a written job description in place so that the employer can compare the crime with the duties of the position and make a fact-based determination of the reason the crime would/would not affect the candidate’s ability to properly perform the duties of the position.)
- In most industries, employers should refrain from implementing a blanket policy that no applicant with a criminal conviction may be hired for any position. Instead, the employer must determine whether a prohibition against hiring candidates who have been convicted of certain categories of crimes is relevant to specific jobs, and whether there is a business necessity that candidates for certain positions not have been convicted of certain types of crimes. A candidate who has been convicted of theft might be eligible for hire, for example, as a customer greeter because he/she would be unlikely to have access to company funds while working in such a position. For this reason, a refusal to hire an otherwise qualified candidate for the position of “greeter” on the basis of his/her criminal conviction could be considered the result of disparate impact discrimination. On the other hand, a candidate who has been convicted of a financial crime might legitimately be excluded from consideration for a position as a company’s controller, because business necessity dictates that the controller must not have a history of financial dishonesty. As with the other guidelines discussed in this article, employers should be able to articulate a non-discriminatory business reason for requiring a criminal background check as a part of the application process for any position to which the background check requirement applies, and the non-discriminatory business reason should be applied uniformly to all candidates for that position.
- The company’s policies must be applied uniformly to candidates for a particular position. If a conviction of committing a violent crime is a bar to the hiring of one candidate, it must be a bar to the hiring of all candidates for similar positions, unless there is a non-discriminatory reason for making an exception in the case of a particular applicant. A non-discriminatory reason for such an exception could be, for example, the age of the candidate at the time of conviction and subsequent efforts at rehabilitation. In sum, the employer cannot pick and choose which candidates to hold to its standards as to a particular position. Applying different standards to different candidates for the same position will generally be viewed as disparate treatment, which can be held to violate Title VII, unless the employer can articulate a non-discriminatory reason for the application of different standards to different candidates.
- The length and consistency of the candidate’s employment history before and after the conviction is relevant. For example, if the conviction occurred several years ago and the candidate has had a strong and reliable work record since then, the conviction should be less of a deterrent to hiring than might be warranted if the employee had had a more checkered work history post-conviction.
- As with the post-conviction work history, efforts at rehabilitation post-conviction may be relevant to the hiring decision. For example, it may be important to consider whether the candidate has completed a degree or received specialized skills training after being convicted.
- Finally, the employer should keep a written record of its hiring decisions and the reasons therefor, identifying fact-based, nondiscriminatory reasons for rejecting any job applicant who has a criminal background. As with all other personnel records, this information should be kept confidential.
Although the guidelines summarized above may, at first blush, seem easy to follow, it is essential that employers seek the guidance of experienced counsel before implementing a criminal background check policy in order to protect against inadvertently engaging in discriminatory treatment of job applicants. Similarly, candidates for employment who have been convicted of a crime should consider seeking legal advice before applying for a new position, to present him/herself in the best light to protect against being unfairly discriminated against on the basis of such a background.
The analysis set forth in this article is provided for general understanding only and should not be considered legal advice. Counsel should always be consulted for advice regarding a specific situation.