Using arrest and conviction records to disqualify applicants from consideration for employment − beware
by CHRISTINA HARRIS SCHWINN
On April 26, 2012, the Equal Employment Opportunity Commission (“EEOC”) issued its updated Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (“Enforcement Guidance”). The updated Enforcement Guidance consolidates and updates prior issued guidance on this topic.
The EEOC’s introductory comments contain startling information about this country’s incarceration rates. For example, if the rates of incarceration remain unchanged: 1) one in seventeen white men are expected to serve time in prison during their lifetime; 2) one in six Hispanic men are expected to serve time in prison during their lifetime; and 3) one in three African-American men are expected to serve time in prison during their lifetime. Based upon these statistics, it is not surprising that the EEOC has taken a particular interest in claims of discrimination that arise when the basis for not hiring a minority applicant or for terminating a minority employee is based upon the individual’s criminal record. In particular, the EEOC’s Enforcement Guidance targets blanket employer policies that disqualify consideration of someone with a criminal record for employment because minorities are disproportionately adversely affected by them.
The EEOC recommends that employers remove questions from their employment applications that inquire about whether a job candidate has been ever arrested or convicted of a crime so that the job candidate is not screened out automatically. Why? Because the EEOC expects covered employers to evaluate each prospective job candidate’s criminal record on an individual basis, to make a determination as to whether the underlying conduct which led to the arrest or conviction is relevant to the job applied for, and take into consideration how old such record is.
Employment policies that take arrest and conviction records into consideration should be applied uniformly regardless of race. Further, such policies should comply with the EEOC’s best practices which are as follows:
- Eliminate policies or practices that exclude people from employment based on any criminal record.
- Train managers, hiring officials, and decisionmakers about Title VII and its prohibition on employment discrimination.
Developing a Policy
- Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct.
- 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 decisionmakers on how to implement the policy and procedures consistent with Title VII.
Questions about Criminal Records
- 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.
- Keep information about applicants’ and employees’ criminal records confidential. Only use it for the purpose for which it was intended.
The Enforcement Guidance applies to employers covered under Title VII of the Civil Rights Act of 1964, as amended. Generally speaking, an employer is a covered employer if the employer employs 15 or more employees. Covered employers should become familiar with the Enforcement Guidance and review their policies. Blanket policies that screen out job candidates from employment eligibility should be updated to ensure compliance with the EEOC’s best practices. Further, such policies should treat arrest records and conviction records separately. While conviction records carry with them a presumption of correctness, arrest records do not. In many cases, arrest records should not be used as justification for disqualifying a candidate due to their inherent unreliability. However, if the underlying conduct which led to the arrest of the individual is job relevant, by all means it should be considered. For example, if an individual is being hired to work with children and the individual has been arrested for molesting a child, the conduct that led to the arrest is relevant and should not be ignored.
A note to the reader: This article is intended to provide general information and is not intended to be a substitute for competent legal advice. Competent legal counsel should be consulted if you have questions regarding compliance with the law.
Christina Harris Schwinn can be reached at firstname.lastname@example.org. She is a partner and an employment and real estate attorney with the Pavese Law Firm in Fort Myers.
 Enforcement Guidance No. 915.00242522 at 13 and 14.
 Employment Guidance No. 915.002,April 25, 2012; pp. 25 and 26.