April 25, 2012, the Equal Employment Opportunity Commission (EEOC) updated its guidance on use of arrest and conviction records in making employment decisions.

Essentially, the EEOC in this new policy guideline has consolidated previous policy statements into one single document and has provided an analysis of the legal requirements with examples of various scenarios that an employer might encounter when considering the use of arrest or conviction records.

Title VII does not prohibit an employer from requiring applicants or employees to provide information regarding arrests and convictions. Recognizing that “criminal record exclusions have a disparate impact based on race and national origin,” and relying on data that shows that blacks and Hispanics have a higher rate of arrests and convictions, the guidance provided by the EEOC focuses on disparate impact analysis under Title VII. It provides that violation of Title VII may occur when there is disparate treatment based on race or national origin, and even a neutral policy (such as excluding applicants from employment based on criminal conduct) may have a disproportionate impact on certain races and therefore may violate the law. Under such circumstances, the employer will be required to show that the policy is “job related and consistent with business necessity.”

The EEOC sets forth two circumstances under which an employer can meet the “job related and consistent with business necessity” defense and provides a) “The employer validates the criminal conduct exclusion for the position in question in light of the uniform guidelines on employee selection procedures (if there is data or analysis about criminal conduct as related to subsequent work performance or behaviors)” or b) “The employer develops a targeted screen considering at least the nature of the crime, the time elapsed, and the nature of the job.” In addition, if the employer can show that there is individualized assessment of the people identified by the screen in order to determine if the policy as applied is job related and consistent with business necessity, the employer is likely to be protected from the claim of Title VII violation.

The guidelines reiterate that state and local laws and regulations are preempted by Title VII if they require or permit an act which would be an unlawful employment practice under Title VII. This may cause exposure to employers under Title VII even where state and local laws may permit an employer to automatically disqualify an applicant with certain types of convictions for certain types of jobs.

Finally, the new guidelines provide examples of best practices for employers when using arrest and conviction records in making employment decisions, ranging from avoiding blanket prohibition of employment based on criminal record to appropriate policies relating to use of criminal record. These include how best to craft the policies and keep good records, train the staff on use of the policy, limit questioning relating to criminal records based on the policy and ensure employee confidentiality.

In essence, the new guidelines place in one document the necessary information for employers who use criminal records when making employment decisions and to ensure they do not run afoul of Title VII.

For more information about how this may impact your business, or for assistance with preventative measures to help avoid facing claims under Title VII, please contact:

• Latha Raghavan (518.935.4250; lraghavan@goldbergsegalla.com)
• Sean P. Beiter (716.566.5409; sbeiter@goldbergsegalla.com)
• Or another member of Goldberg Segalla’s Labor and Employment Practice Group