On April 25th, the Equal Employment Opportunity Commission issued new “enforcement guidance on the consideration of arrest and conviction records in employment decisions under Title VII of the Civil Rights Act of 1964.” This is the first guidance on this topic issued by the EEOC in more than 20 years. It reflects the EEOC’s recent litigation trend of trying to limit employers’ use of criminal records in making employment decisions.

1. First Glance:
The EEOC's
New
Guidance on
Using Criminal Records
Mike Coffey, SPHR
President
Imperative Information Group

2. First Glance:
The EEOC's
New
Guidance on
Using Criminal Records
Get good
legal advice
Mike Coffey, SPHR
President
Imperative Information Group

3. Why Employers Run
Background Checks

4. Why Employers Run
Background Checks

5. Why Employers Run
Background Checks

6. The federal Fair Credit Reporting Act
governs background checks.

7. Disclosure must be made and written
authorization received.

8. The employer must provide information
prior to making an adverse decision.

9. The employer must provide additional
notice after taking the adverse decision.

10. FCRA claims are becoming popular
class action items.

11. The FCRA limits what can be reported in
background checks.

12. State/Local Restrictions on Employers
(Ban the Box laws)
 Massachusetts: Employers may not inquire about
criminal records on the initial written application.
 Minnesota, Connecticut & New Mexico: Public
employers may not inquire about criminal records
on the initial written application.
 Hawaii: Employer may inquire only after an offer
of employment is made
 More than 2 dozen cities have passed similar
ordinances including Philadelphia, Baltimore, Memphis, and San Francisco

13. Title VII of Title VII of the of 1964
the Civil Rights Act
Civil Rights Act of 1964

14. Protected Classes under Title VII
 Race
 Color
 Sex
 National origin
 Religion

15. EEOC
 Federal law enforcement
agency
 Not rulemaking agency
 2,500+ employees
 $379 M budget
(down $7.3 M from 2011)

16. EEOC
 5 commissioners
 Currently 2 Democrats
and 2 Republicans
 Comm. Ishimaru left
4/30/2012 to join CFPB
 Gridlock expected until after the
November elections

17. Other Title VII Enforcement
 State fair employment practices agencies
can also enforce Title VII
 Individuals can also file individual lawsuits
Courthouse

18. Title VII of the Civil Rights Act of 1964
 Disparate Treatment - intentional
discrimination against someone in a protected
class where there is not a bona fide occupational
qualification.

19. Title VII of the Civil Rights Act of 1964
 Disparate impact - seemingly neutral policies
without business necessity that have adverse
impacts on protected classes (“disparate impact”
- see Griggs v. Duke Power Company)
 “Business necessity” –
 manifest relationship to employment role
 with no viable alternatives to qualify

20. Title VII of the Civil Rights Act of 1964
Criminal Records Brightline Rule:
Have you ever been arrested?
 No
 Yes (please deposit your application in the
trashcan on your way out)

21. Title VII of the Civil Rights Act of 1964
When reviewing criminal records, an employer must consider
the Green factors (Green v. Missouri Pacific Railroad):
– Nature of the offense,
– The time elapsed,
– The nature of the job,
In nonconviction cases, employers should also consider the
reasonable likelihood that the person engaged in the
underlying conduct.
See the previous EEOC Guidance: EEOC Policy Statement on the Issue of Conviction Records under Title VII of the Civil
Rights Act of 1964 and Policy Guidance on the Consideration of Arrest Records in Employment Decisions under Title VII of
the Civil Rights Act of 1964

22. EEOC Activity
 99,947 charges filed in 2011 (20% increase
since 2005)
 E-RACE initiative looks for systemic
discrimination (disparate impact claims)
 July 26, 2011 - hearings on the use of criminal
records in employment (“a new protected
class”)

23. EEOC Activity
02/22/2012 Strategic Plan for FY 2012-2016
 Combat employment discrimination through
strategic law enforcement.
 Prevent employment discrimination through
education and outreach
 Deliver excellent and consistent service through
a skilled and diverse workforce and effective
systems.

24. EEOC v. Freeman Companies

25. EEOC v. Kaplan Higher Education Corp.

26. Title VII of the Civil Rights Act of 1964

27. EEOC v. PeopleMark

28. State EEO Laws
Many states have their own equal employment
opportunity or human rights laws.
 Washington state and Hawaii will not allow
employers to consider any criminal records
older than ten years.
 6 states have “job-relatedness” requirements
for the consideration of criminal records

30. New EEOC Enforcement Guidance

31. New EEOC Enforcement Guidance

32. New EEOC Enforcement Guidance

33. New EEOC Enforcement Guidance

34. Criminal Offenders not a protected class

35. Green factors
+ Individualized Assessment

36. Nature & Gravity

37. Time Passed

38. Nature of the Job

39. Individualized Assessment

40. Individualized Assessment

41. Individualized Assessment

42. Individualized Assessment

43. Individualized Assessment

44. Individualized Assessment

45. Individualized Assessment

46. Individualized Assessment

47. Individualized Assessment

48. Individualized Assessment

49. Add individualized assessment on the
employment application?
Following your application’s state-specific criminal history
question, Coffey suggests that you consider adding:
If you believe that the information above does not
adequately reflect the circumstances surrounding the
case(s) listed above or if there is additional information not
included elsewhere on this application that you believe the
Company should be aware in evaluating your fitness for this
position, please provide that information below:

50. Add individualized assessment on the
employment application?
Following your application’s state-specific criminal history
question, Coffey suggests that you consider adding:
If you believe that the information above does not
adequately reflect the circumstances surrounding the
case(s) listed above or if there is additional information not
included elsewhere on this application that you believe the
Company should be aware in evaluating your fitness for this
position, please provide that information below:

51. The employer must provide information
prior to making an adverse decision.

52. Add individualized assessment to the
FCRA pre-adverse action notice?
Insert: If you believe that there is
additional information that may help
us better evaluate your fitness for this
position in light of the information in
the attached consumer report, please
contact us immediately.

53. Individualized Assessment Factors

54. Is individualized assessment
always necessary?

55. Adjudication Relevance Matrix
Position-specific (or job class-specific?) criminal
offense guidelines (in line with state laws):
Yes: Eligible for hire (Y)
Corporate Review: Management review of
offense, time that has passed, and
applicant’s whole picture (C)
No: Not eligible for hire (N)
SHOULD BE LIMITED IN APPLICATION

56. Adjudication Relevance Matrix
OFFENSE 0 - 3 YEARS 3 - 7 YEARS 7 YEARS +
(0 - 36 MONTHS) (37 - 84 MONTHS) (85 + MONTHS)
Alcohol Consumption/Possession Y Y Y
Alcohol Sale to Minor C C Y
Arson N N N
Assault/Battery/Domestic Violence (FELONY) N N C
Assault/Battery/Domestic Violence (MISD) C C Y
Auto Theft N N C
Burglary/Breaking and Entering/Burglar's Tools N N C
Child Abuse/Molestation N N N
Child Neglect/Child Endangerment (FELONY) N N N
Child Neglect/Child Endangerment (MISD) N C Y
Child Support Y Y Y
Computer Crimes C C C
Contributing to Delinquency Minor C C C
Credit Card Abuse/Fraud/Skimming N N N
Criminal Contempt C Y Y
Criminal Mischief/Damage to Property/Vandalism N Y Y
Disorderly Conduct C Y Y
Drug Possession/Drug Abuse/Poss. of Drug Paraphernalia (MISD) N C Y
Drug Sale/Distribution/Manufacturing/Felony Possession N N C
Embezzlement N N N
Evading Arrest/Failure to Identify as Fugitive/Fugitive C C Y
Failure to File Tax Return C Y Y
False Report C Y Y

57. Relation to Other Federal Laws

58. Relation to State Laws

59. Ban the Box (backdoor version)

60. Questions?
Mike Coffey, SPHR
President
Imperative Information Group
coffey@imperativeinfo.com
877-473-2287