What the EEOC and OFCCP Want You to Know About Criminal Background Checks
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What the EEOC and OFCCP Want You to Know About Criminal Background Checks

What’s up with the EEOC, the OFCCP and criminal background checks? While the EEOC enforces anti-discrimination laws for private employers, and generally those who employ 15 or more employees, the OFCCP enforces affirmative action laws and regulations to which federal contractors are subject. Administering background checks to all applicants can’t be discriminatory, can it? If not, then why would employers even have to worry about the EEOC or the OFCCP when conducting background checks?

Let’s answer that question and some others:

Are former convicts a protected class under anti-discrimination laws?  No. Certain practices, although themselves neutral, may, by “hurting” a disproportionate number of   people protected under federal anti-discrimination laws, have a discriminatory impact. Those practices too would then be in violation of federal anti-discrimination laws.  The EEOC, citing studies show that African-Americans  and Hispanics have significantly more arrests and convictions,  takes the position that blanket exclusions of all applicants with criminal histories therefore has a discriminatory impact on African-Americans and Hispanics. The OFCCP has specifically stated that it follows the EEOC’s practices, and in Directive 306, explicitly adopted the EEOC position and practices with respect to use of arrest and conviction records in making hiring decisions.

Why do the EEOC and OFCCP get involved in this practice? Many employers are surprised to hear that the EEOC has issued position statements since at least 1987 on this very issue. Based on this position, it began investigating complaints relating to use of background checks when hiring, and filing lawsuits long before issuing its latest Enforcement Guidance last April. Again, the OFCCP has long followed EEOC practices with respect to this and many other anti-discrimination laws and measures.

Does this mean that employers can no longer conduct criminal background checks? No!  Employers can, and, in order to avoid harmful situations and negligent hiring suits, should, still conduct background checks. The EEOC’s Enforcement Guidance attempts to provide employers with some additional guidelines as to how and when to use the information contained in criminal background checks in making their hiring decisions. Prior to issuing its Enforcement Guidance, the EEOC provided more basic guidelines (which the Enforcement Guidance has incorporated) by telling employers to consider the following factors with respect to applicants and their criminal backgrounds:

  1. The nature and gravity of the offense;
  2. Time elapsed since the conviction and/or completion of sentence;
  3. Nature of the job held or sought.

The EEOC, and federal court cases (the US Supreme Court has never decided this issue) also have held that a business necessity will justify exclusion of an applicant based on his or her criminal record. Simply put, if one’s criminal past is not relevant to the essential functions of a particular job or some other compelling business necessity, the employer should not exclude the applicant on that basis. For example, if Betty applies for a job as a bookkeeper and was convicted two years ago for embezzlement, that is relevant to the job. Rejecting her is justified even under the EEOC’s analysis and guidelines.  An employer might reject a man with a history of sexually assaulting women  for a job that would put him in proximity with a female employee late at night when no one else is around and be acting consistent with a business necessity. On the other hand, if Danny pleaded guilty to public drunkenness one time 7 years ago that may not be a justifiable basis for refusing him a job as an administrative assistant.

Since the OFCCP is all but in lock-step with the EEOC on this issue, federal contractors would do well to familiarize themselves with the EEOC’s Enforcement Guidance.

What then, does the EEOC’s Enforcement Guidance really change?  Given that the EEOC’s position and practices have been essentially the same for over 25 years, perhaps not much at all.  The Guidance over 46 pages long, mostly cites background, studies and reasoning for its position. The part of most practical interest to employers, the list of Employer Best Practices, is at the end of the Enforcement Guidance, and is as follows:

General:

  • Eliminate policies or practices that exclude people from employment based on any criminal record. Employers cannot have blanket exclusions of those with criminal pasts. (So this is a blanket exclusion of blanket exclusions?? Maybe.)
  • Train managers, hiring officials and decision makers about Title VII and its prohibition on employment discrimination. Title VII of the Civil Rights Act of 1964 is the law that prohibits employment discrimination against certain classes of people identified therein (i.e. “protected classes”). The EEOC wants employers to sensitize its managers to these laws, and how otherwise neutral practices can have a discriminatory impact on the people who Title VII is designed to protect. Ideally, training managers about Title VII and related laws should not be new.

Developing a Policy:

  • Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct (that does the following: )
    • Identify essential job requirements and the actual circumstances under which the jobs are performed.
    • Determine the specific offenses that may demonstrate unfitness for performing such jobs
    • Identify the criminal offenses based on all available evidence.
    • Determine the duration of exclusions for criminal conduct based on all available evidence.
    • Include an individualized assessment.
    • Record the justification for the policy and procedures.
    • Note and keep a record of consultations and research considered in crafting the policy and procedures.
  • Train managers, hiring officials and decision makers on how to implement the policy and procedures consistent with Title VII.

In short, the EEOC and OFCCP want employers to implement policies that consider the relationship of the criminal offense(s) to the essential job requirements, especially if they are “old”, possible rehabilitation by the candidate, and whenever possible, to evaluate on a case by case basis. If an employer rejects an applicant based on criminal history, it should record the decision and the justification and, once it has created a policy and procedures, train those it expects to be implementing them. (NOTE: According to the EEOC, arrests alone are not themselves evidence of criminal conduct, though the underlying conduct leading to the arrest, if related to job functions or business necessity can be considered.)

Questions:

  • When asking questions about criminal records, limit inquiries to records for which exclusion would be job-related for the position in question and consistent with business necessity.

Employers should, whenever possible, only ask about items related to the actual job or a specific business necessity. If the report refers to something that is not related to the job, the employer should not ask about it.

Confidentiality:

  • Keep information about applicants’ and employees’ criminal records confidential. Only use if for the purpose for which it is intended.

This one seems self-explanatory.

Well, let’s stop here for now, and if you want to learn more about use of criminal background checks in the hiring process, make sure to attend our webinar on Thursday, November 10 at 10:30 a.m. PST, 1:30 p.m. EST.

For more information, contact Ahmed Younies at 800-708-3655, x703.

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