EEOC Issues Enforcement Guidance

Commission updates guidance on employer use of arrest and conviction records.

The US Equal Employment Opportunity Commission (EEOC) today issued an updated enforcement guide on employer use of arrest and conviction records.  According to the EEOC, the purpose of this guide is to consolidate and update the EEOC’s guidance documents regarding the use of arrest or conviction records in employment decisions under Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex or national origin. The EEOC’s enforcement guide is an effort to eliminate unlawful discrimination during the background screening and hiring/retention process.

This new guide is not a rule or regulation, but rather an enforcement of Title VII with regards to criminal records and something employers should be familiar with.  If an employer fails to follow these guidelines, they might be subject to an investigation and litigation by the EEOC and applicants who have been discriminated against.  The EEOC has recently stepped up its enforcement in such high profile cases as Pepsi being ordered to pay $3.13 million and change their background screening policies which resulted in nationwide hiring discrimination against African Americans with criminal background checks.

Having a criminal record is not protected under Title VII, which is what the EEOC enforces.  However, according to the EEOC, liability for employment discrimination is determined using “disparate treatment” and “disparate impact”.  They describe these as:

Disparate Treatment: “An employer’s decision to reject a job applicant based on racial or ethnic stereotypes about criminality, rather than qualifications and suitability for the position, is unlawful disparate treatment that violates Title VII.  They provide two examples:

EX 1: Disparate Treatment based on Race – John, who is White, and Robert, who is African American, are both recent graduates of State University. They have similar educational backgrounds, skills, and work experience. They each pled guilty to charges of possessing and distributing marijuana as high school students, and neither of them had any subsequent contact with the criminal justice system.

After college, they both apply for employment with Office Jobs, Inc., which, after short intake interviews, obtains their consent to conduct a background check. Based on the outcome of the background check, which reveals their drug convictions, an Office Jobs, Inc., representative decides not to refer Robert for a follow-up interview. The representative remarked to a co-worker that Office Jobs, Inc., cannot afford to refer “these drug dealer types” to client companies. However, the same representative refers John for an interview, asserting that John’s youth at the time of the conviction and his subsequent lack of contact with the criminal justice system make the conviction unimportant. Office Jobs, Inc., has treated John and Robert differently based on race, in violation of Title VII.

EX 2: Disparate Treatment based on National Origin – Tad, who is White, and Nelson, who is Latino, are both recent high school graduates with grade point averages above 4.0 and college plans. While Nelson has successfully worked full-time for a landscaping company during the summers, Tad only held occasional lawn-mowing and camp-counselor jobs. In an interview for a research job with Meaningful and Paid Internships, Inc. (MPII), Tad discloses that he pled guilty to a felony at age 16 for accessing his school’s computer system over the course of several months without authorization and changing his classmates’ grades. Nelson, in an interview with MPII, emphasizes his successful prior work experience, from which he has good references, but also discloses that, at age 16, he pled guilty to breaking and entering into his high school as part of a class prank that caused little damage to school property. Neither Tad nor Nelson had subsequent contact with the criminal justice system.

The hiring manager at MPII invites Tad for a second interview, despite his record of criminal conduct. However, the same hiring manager sends Nelson a rejection notice, saying to a colleague that Nelson is only qualified to do manual labor and, moreover, that he has a criminal record. In light of the evidence showing that Nelson’s and Tad’s educational backgrounds are similar, that Nelson’s work experience is more extensive, and that Tad’s criminal conduct is more indicative of untrustworthiness, MPII has failed to state a legitimate, nondiscriminatory reason for rejecting Nelson. If Nelson filed a Title VII charge alleging disparate treatment based on national origin and the EEOC’s investigation confirmed these facts, the EEOC would find reasonable cause to believe that discrimination occurred.

Evidence that the EEOC looks for to establish that an employer is using discriminatory hiring practices include, but are not limited to:

  • Biased statements
  • Inconsistencies in the hiring process
  • Similarly situated comparators
  • Employment testing
  • Statistical evidence

Disparate Impact: “A complaining party demonstrates that an employer uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex or national origin and the respondent fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity.”

The EEOC Guidance also discussed the difference between arrests and convictions, and the fact that an arrest is not necessarily proof of a crime since many arrests do not result in convictions.  The full EEOC Enforcement Guidance can be found here:

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