EEOC Guidelines Presented by: Molly Powell Senior Trial Attorney

New Guidance: Why Now? Twenty years since EEOC’s last policy statements The Civil Rights Act of 1991 codified Title VII disparate impact analysis Easy online access to criminal records for employers The Third Circuit Court of Appeals requested more analysis (El v. Southeastern Pennsylvania Transportation Authority, 2007 ) EEOC examined social science and criminological research, court decisions, and information about various state and federal laws, among other information, to further assess the impact of using criminal records in employment decisions.

A Few Facts 1 in 17 white men will be incarcerated. 1 in 6 hispanic men will be incarcerated. 1 in 3 black men will be incarcerated. Excluding all applicants with conviction records will have a disparate impact in violation of Title VII unless justified by business necessity

Arrests Arrests do not establish that criminal conduct even occurred. Arrest records in themselves should not underlie employment decisions However, the conduct underlying an arrest may, in some cases, justify an employment decision. The decision must still be job related and consistent with business necessity

Convictions Follow from some form of due process Establish that the misdeed actually occurred Still may not be job related and consistent with business necessity.

Types of Discrimination Disparate Treatment— deliberately treating someone differently from others because of his or her race. Disparate Impact— adopting a policy which has the unintended effect of making life harder for people of a particular race. Both are unlawful under Title VII

Disparate Treatment John, who is Caucasian, 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.

Disparate Impact Practices that harm racial or ethnic groups can be discriminatory even if there is no obvious intent to discriminate A covered employer is liable for violating Title VII when the plaintiff demonstrates that the employer’s neutral policy or practice has the effect of disproportionately screening out a Title VII-protected group and the employer fails to demonstrate that the policy or practice is job related for the position in question and consistent with business necessity

Griggs v. Duke Power Co. The U.S. Supreme Court interpreted Title VII to outlaw policies that have a disparate impact unless they are: 1. Job related and 2. Consistent with business necessity Is there a less discriminatory alternative?

Step One: Identify the Policy or Practice Text of policy Which offenses or classes of offenses were reported to employer? Convictions, arrests, or charges reported? How far back in time the reports reached? The jobs for which the criminal background screening was conducted Training or guidance by the employer, which may specify which types of criminal history info to gather for which particular jobs, how to gather the info, and how to evaluate it after it is obtained.

Step Two: Determining Disparate Impact National data supports a finding that criminal record exclusions have a disparate impact based on race and national origin Local and regional data re: race, arrests and convictions Applicant data Workforce data Demographic availability data Employer’s reputation in the community Bottom line racial balance in workforce does not preclude employees form establishing a prima facie case of disparate impact, nor does it provide employers with a defense Question is: Does the policy or practice deprive a disproportionate number of Title VII protected individuals of employment opportunities

Green v. Missouri Pacific Railroad Factors to consider in determining whether an offense relates to the job and is consistent with business necessity: 1. The nature and gravity of the offense or conduct 2. The time that has passed since the offense or conduct and/or completion of the sentence 3. The nature of the job held or sought

When is a decision based on conviction job related and consistent with business necessity? 1. There is hard data suggesting a strong link between conviction for the particular offense and weak job performance in the particular job. 2. Decision is consistent with the Green factors and there is ample opportunity for individualized assessment.

Factors to Consider in Individualized Assessment Facts or circumstances surrounding offense or conduct Number of offenses for which the individual was convicted Older age at time of conviction or release from prison Evidence that individual has performed same type of work, post conviction, with no known incidents of criminal conduct Employment history before and after offense Rehabilitation efforts Employment or character references Whether individual is bonded

Employer Best Practices Avoid blanket prohibitions based on any arrest or conviction. Identify essential job requirements based on each job’s actual circumstances and responsibilities. Only exclude applications based on a criminal record if there is reason to believe that the particular offense speaks to an inability to meet the job’s essential requirements. Keep a record of decisions and the reasoning behind them. If there is a less discriminatory way to achieve the same objective—do it.

Further Information Enforcement Guidance: onviction.cfm onviction.cfm Q and A: t_conviction.cfm t_conviction.cfm What You Should Know Fact Sheet: rrest_conviction_records.cfm rrest_conviction_records.cfm