Thursday, May 17, 2012

EEOC Strengthens Discrimination Protections for Ex-Offenders

On April 25, 2012, the Equal Employment Opportunity Commission (“EEOC”) issued a new Enforcement Guidance on the use of criminal history information in making hiring and other employment decisions. This Guidance furthers the EEOC’s strategic focus on eradicating systemic race discrimination, as discussed in earlier blog posts (4/25/12 and 1/27/12). Because persons of color are arrested and convicted at disproportionate rates, excluding individuals from employment based on a criminal record can be unlawful race discrimination under Title VII of the Civil Rights Act of 1964. To be lawful under Title VII, an employment exclusion must be based on proven criminal conduct and must be job-related and consistent with business necessity. In light of the Guidance, employers should take the following steps to ensure that their criminal history screening policies and practices are not discriminatory:

  • Don’t make decisions based solely on an arrest.  Arrest-based decisions are discriminatory, because an arrest does not establish that criminal conduct occurred. An employer may, however, exclude someone from employment based on the conduct underlying an arrest if that conduct occurred and makes the person unfit for the position.
  • Don’t engage in intentional discrimination.  Intentional race discrimination is unlawful, even if against ex-offenders. For example, it is unlawful to refuse to hire a person of color based on a drug conviction, but to hire a similarly situated Caucasian.
  • Don’t maintain a blanket policy or practice of automatic exclusions. The Guidance provides that blanket-exclusions are unlawful, because they are not tied to the particular position or criminal conduct at issue.
  • Do make sure that any exclusion is job-related and consistent with business necessity. The Guidance provides that the following types of exclusions satisfy this standard:
    • Exclusions that have been validated under the EEOC’s Uniform Guidelines on Employee Selection Procedures.
    • Exclusions based on a written, targeted screening policy and procedure under which the employer considers, at a minimum:
      • The job’s essential duties and the circumstances under which the job will be performed;
      • The type of criminal conduct that makes someone unfit for the position;
      • The duration of any exclusion, taking into account recidivism data, if available, on the period during which someone is likely to reoffend; and
      • Either (1) the existence of a “demonstrably tight nexus” between the criminal conduct and the position; or (2) an individualized assessment, of any explanation offered by the individual, based on the employer’s request, as to why he or she should not be excluded from employment.
    • Exclusions that result from federal law or regulations.
    • Exclusions that result from state law or regulations, but, because Title VII preempts state requirements, only if the exclusion is job-related and consistent with business necessity.
  • Do train human resources, management, and hiring personnel.  Employers should train the individuals charged with carrying out employment practices on policies and practices on the use of criminal history information.
  • Do Maintain Confidentiality:  To promote privacy and prevent the improper use of irrelevant information, employers should consider asking only for job-related criminal history information. If this is not practical, an employer might wall off the individual screening criminal history data from the decision-making process and have that individual share only relevant information with the decision makers on a confidential basis. Criminal history information that is obtained by an employer should be kept confidential and stored in a confidential manner.

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