The EEOC's Renewed Focus on Criminal Background Checks

The EEOC’s Renewed Focus on
Criminal Background Checks
Presented by:
Jovita Foster


A Majority of Employers Conduct Criminal
Background Checks on Employees and
Applicants
 92% of employers conduct criminal background checks on
employees/applicants according to the Society of Human
Resource Management.
 Criminal records are now online
 Research shows employers conduct background checks for
some or all jobs and are often unwilling to consider hiring
individuals who have been arrested or incarcerated


What Laws are Implicated?

 Title VII of the Civil Rights Act of 1964, as amended
 Fair Credit Reporting Act


Disqualifying Candidates with Criminal
Records: An Early Civil Rights Issue

 Since at least 1969, the EEOC has received, investigated, and
resolved employment discrimination charges alleging that
employers used criminal records in a discriminatory way,
most often based on race or national origin.


Disqualifying Candidates with Criminal
Records: An Early Civil Rights Issue

 In its earlier policy statements & guidance, the EEOC’s
analysis focused heavily on disparate treatment
discrimination.
 The EEOC discouraged employers from inquiring about arrests
in employment decisions, due to the risk of disparate
treatment (adverse impact) on certain minorities; and
 The EEOC encouraged employers to look at the circumstances
underlying a record of a criminal conviction in relation to the
employer’s job prior to making an adverse employment
decision.


New EEOC Guidance Focuses on Disparate
Impact Discrimination

 New Guidance: EEOC Enforcement Guidance on the
Consideration of Arrest and Conviction Records in
Employment Decisions (No. 915.002)
 The majority of the new EEOC Guidance focuses on the EEOC’s
belief that African Americans and Hispanics are being
subjected to disparate impact discrimination because of
employers’ improper use of criminal background screening.


What Sparked the EEOC’s Renewed Focus?

 El v. Southeastern Pennsylvania Transportation Authority, 479
F.3d 232 (3d Cir. 2007)
• Douglas El is a 55 year old African American man who was
involved in a gang fight when he was 15, the fight resulted in
another person’s death;
• El was convicted of second-degree murder;
• 40 years later, SEPTA hired El as a paratransit driver
(responsible for driving individuals with physical and mental
disabilities);


El v. Southeastern Pennsylvania Transportation Authority, 479
F.3d 232 (3d Cir. 2007)

• After hiring El, SEPTA learned that El was convicted of
second degree murder
• SEPTA terminated El after learning of his conviction
• When deciding to terminate El, SEPTA relied on its policy
against hiring any person ever convicted of a violent crime
to work as a paratransit driver
• El sued SEPTA; in the lawsuit, he challenged his termination
and SEPTA’s policy of excluding any applicant ever convicted
of a violent crime from the job of paratransit driver


F.3d 232 (3d Cir. 2007)

• The Court expressed “reservations” about SEPTA’s policy
excluding any person convicted of a violent crime, no matter
how long ago committed
• But - the District Court and the Court of Appeals affirmed
summary judgment for SEPTA.


F.3d 232 (3d Cir. 2007)

• Court’s Rationale –
− Nature of the position of paratransit driver, with unsupervised
access to vulnerable adults, required SEPTA to exercise utmost
care;
− No evidence from El that there is a point at which a former
criminal is no more likely to recidivate than an average
person; and
− The EEOC’s existing policy was too loose to be entitled to
deference from the Courts.


New EEOC Guidance Focuses on Disparate
Impact Discrimination
 The majority of the new EEOC Guidance addresses the EEOC’s
concerns of disparate impact discrimination of African
Americans and Hispanics as a result of criminal background
screening.
 Disproportionately high incarceration rates of African
Americans and Hispanics, particularly men.
 Use of criminal background screening results in disparate
impact discrimination against African American and
Hispanics


Quick Refresher – Disparate Treatment
versus Disparate Impact
 Disparate Treatment Discrimination
• An individual is treated differently in the terms and
conditions of his employment on the basis of his race, color,
religion, sex or national origin.
 Common Example:
• Employer rejects an African American candidate convicted of
a non-violent misdemeanor offense, but has a history of
hiring white candidates with comparable criminal records.


 Disparate Impact Discrimination
• Disparate impact discrimination occurs if:
− an employment practice causes a disparate impact on
the basis of race, color, religion, sex or national origin
and
− the employer fails to demonstrate that the challenged
practice is “job related for the position in question and
consistent with business necessity.”


 Disparate Impact Discrimination
• Facially neutral policy
• that has a disproportionately negative impact on a protected
class.
 Example:
• When hiring laborers, the employer requires that the
successful applicants have a high school diploma. The
diploma requirement screened out many more African
Americans than whites, resulting in a disparate impact on
African Americans based on race.


Disparate Impact Discrimination & Criminal
Background Screenings
 The EEOC has concluded that certain criminal record
exclusions have a disparate impact based on race and
national origin, particularly as to African Americans and
Hispanics.


EEOC’s Statistics Supporting Disparate
Impact on African Americans and Hispanics:
 According to the EEOC:
• In 2010, 28% of all arrests were African Americans, even
though African Americans comprised approximately 14% of
the population.
• In 2008, Hispanics were arrested for federal drug charges at
three times the rate of the general population.
• African Americans and Hispanics are incarcerated at rates
disproportionate to their numbers in the general
population.


The EEOC’s Guidance: Arrests

 Arrest records should never be used to make an adverse
employment decision.
 Arrest records may not show what happened after the arrest.
(Were charges filed? Were charges dismissed?)
 Even if prosecuted, people are innocent until proven guilty.


The EEOC’s Guidance: Convictions
 Employers should only consider convictions that are related
to the job, and employers should have a time limit for
considering old convictions.
 Convictions may be wrong. For example:
• personal identifying information may be inaccurate or
confused;
• the offense may have been expunged; or
• the person may have entered into a diversionary program.


The EEOC Will Require Policy Changes &
Settlements if it Finds an Employer’s Criminal
Record Policy Violates Title VII
 The EEOC investigated a charge of race discrimination against
Pepsi, which alleged Pepsi’s criminal background check policy
discriminated against African Americans
 EEOC’s investigation revealed that 300 African Americans
were adversely affected by Pepsi’s background check policy
 Pepsi required to pay $3.13 million & to make major policy
changes


What defenses do you have if the
EEOC or an employee claims your
criminal records policy has a
disparate impact on minorities?


The Employer’s Burden of Proof in Disparate
Impact Claims
 If the EEOC or an employee establishes that an employer’s
policy or practice results in a disparate impact, the employer
must prove that the policy or practice is job related and
consistent with business necessity.


How Does an Employer Establish a Business
Necessity Defense?
 There are two ways an employer can show a criminal records
policy is “job-related and consistent with business
necessity.”
• Validation using Uniform Guidelines on Employee Selection
Procedures; and
• A Targeted Screening Process


Option One: Validation

 Validate criminal conduct exclusion using Uniform Guidelines
on Employee Selection Procedures
• Complicated and Expensive
• Includes using statistical models
• Even the EEOC acknowledges this process has challenges


Option Two: Targeted Screening Process

 A Targeted Screening Process considers:
• The nature and gravity of the offense or conduct;
• The time that passes since the conviction; and
• Nature of the job held or sought.


More on the Targeted Screening Process

 Factor One – What is the nature and gravity of the offense?
• The offense is assessed by considering the harm caused by
the crime
• For example – theft causes property loss
• Misdemeanors are less severe than felonies
• Convictions for felony theft may involve deception, threat or
intimidation (indicating a more serious offense)


Factor Two – How Much Time has Passed?

 As time passes, the likelihood of recidivism declines
 No consensus on age of relevant criminal records
 EEOC studies range (6 to 15 years)
 Analysis of whether your policy contains an overly broad
exclusion (i.e., a time period that is too long given the
likelihood of recidivism) will be made on a case-by-case basis


Factor Three – What is the nature of the job
held or sought?
 In order for a conviction to be relevant, the nature of the
conviction should have some connection or link to the
essential functions of the position at issue.
 Consider:
• The nature of the job duties (data entry, lifting boxes,
driving; handling property or large sums of money)
• Circumstances under which duties are performed (what is the
level of supervision? With whom will the employee work?)


Factor Three – What is the nature of the job
held or sought?
 Consider:
• The environment where the duties will be performed (private
home, outdoors, or warehouse location?)

 Linking the criminal conduct to the essential functions of the
position in question may assist the employer in
demonstrating that its policy or practice is job related and
consistent with business necessity


Individualized Assessment

 Would occur after the employer learns that an
applicant/employee has a criminal conviction that may
exclude him or her from a position
 Provides the applicant/employee an opportunity to
demonstrate that the exclusion does not apply to him or her
 Considers whether the individual’s additional information
shows that the policy as applied is not job related and
consistent with business necessity
 Not required in all circumstances, but recommended by the
EEOC


Burden Shifts Back to the EEOC/Employee

 If the employer successfully demonstrates that the policy or
practice is job-related and consistent with business necessity
the burden shifts back to the EEOC or employee
 EEOC or employee must show that there is a less
discriminatory “alternative employment practice” that serves
employer’s goals, but the employer refused to adopt it


How Does the EEOC’s Guidance Affect
Employers?
 Proverbial “Catch 22”
 EEOC’s Guidance does not affect employer liability for
workplace violence, theft or fraud
 The EEOC’s Guidance does not affect employer liability for an
employer’s failure to comply with licensure requirements


How Does the EEOC’s Guidance Affect
Employers?
 The EEOC’s Guidance is not controlling on courts’
interpretation of Title VII
 But Courts and litigants may refer to the EEOC’s
interpretation for guidance based on its:
• Thoroughness
• Validity of reasoning
• Consistency with earlier EEOC pronouncements


What can you do to ensure your criminal
record policies and practices are not
deemed discriminatory?


Employer Best Practices
 Eliminate policies or practices that exclude individuals from
employment based on any criminal record
 Develop a policy that is narrowly tailored to screen applicants
and employees for criminal conduct
• Identify essential job requirements
• Identify actual circumstances under which jobs are
performed
• Determine the offenses that may demonstrate unfitness for
performing such jobs
• Determine the duration of exclusions for criminal conduct
(avoid overly broad time frames)
• Include individualized assessment in your hiring process


Employer Best Practices

 Record the justification for the policy and procedures at issue
 Note and keep a record of research considered in crafting the
policy and procedures
 When asking questions about criminal records, limit the
inquiries to records for which exclusions would be job related
for the position in question and consistent with business
necessity


Fair Credit Reporting Act

 The Fair Credit Reporting Act (“FCRA”) governs background
checks, such as criminal record checks and credit checks. The
FCRA is enforced by the Fair Trade Commission (“FTC”).
 The FCRA encompasses background checks performed by third
party service providers known as “consumer reporting
agencies” (“CRAs”), but not background checks performed by
the employer itself.



 The FRCA requires notice to the prospective employee that a
background check will be performed.
 Before the employer can perform a background check, the
employee must provide written consent.
 The employer may condition employment on consent to a
background check.



 Before you take an adverse action based on the background
check, you must provide the applicant with a copy of the report
of the background check and the FTC’s “Summary of Your Rights
Under the Fair Credit Reporting Act” (which can be found on the
FTC’s website, www.ftc.gov).
 After you take an adverse action based on the background
check, you must provide the applicant with notice of the adverse
action, the name, address and telephone number of the CRA,
and inform the applicant that he/she has the right to obtain a
free copy of the background check report from the CRA and to
dispute its accuracy.



 Employers that do not comply with the FRCA could be held
liable for damages, penalties, and attorneys’ fees.


Contact Information
Jovita Foster
jfoster@armstrongteasdale.com
314.621.5070


The EEOC's Renewed Focus on Criminal Background Checks

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