State Attorneys General Criticize EEOC Guidance on Criminal Background Checks
Ever since the EEOC issued its “updated” Enforcement Guidance on the use of criminal background checks in April 2012, employers have struggled to understand exactly what could be asked and used in screening candidates for employment. (See our article “Arrest and Conviction Records – EEOC Takes a Stand.”) In July of this year, nine state Attorneys General sent a letter to the EEOC criticizing the EEOC’s application of the disparate impact in the use of criminal screens. They assert that “race discrimination cannot plausibly be your agency’s actual concern” and that the EEOC’s “true purpose may not be the correct enforcement of the law, but rather the illegitimate expansion of Title VII protection to former criminals.”
The EEOC Responds and Gives Direction on Its Guidance
In last year’s Enforcement Guidance, the EEOC suggested that employers could avoid liability if they developed screening for criminal backgrounds that was targeted and with an individualized assessment. In other words, the employer may develop a targeted screen, considering at least the nature of the crime, the time elapsed and the nature of the job. The employer’s policy should then provide an opportunity for an individualized assessment for those people identified by the screen to determine if the policy, as applied, is job related and consistent with business necessity. Based on this Guidance, does the EEOC now require an individual assessment in all cases? This is where the confusion arose and what caused the objections of the Attorneys General.In response to the criticism, EEOC Chair Jacqueline A. Berrien responded in a letter stating:
This objection appears to be premised on a misunderstanding: that the Guidance urges employers “to use individualized assessments rather than bright-line screens.” This is incorrect. The Guidance does not urge or require individualized assessments of all applicants and employees.
Instead, the Guidance encourages a two-step process, with individualized assessment as the second step. First, the Guidance calls for employers to use a “targeted” screen of criminal records. A “targeted” screen considers at least: 1) the nature of the crime; 2) the time elapsed; and 3) the nature of the job. Once the targeted screen has been administered, the Guidance encourages employers to provide opportunities for individualized assessment for those people who are screened out. Using individualized assessment in this manner provides a way for employers to ensure that they are not mistakenly screening out qualified applicants or employees based on incorrect, incomplete, or irrelevant information, and for individuals to correct errors in their records. The Guidance’s support for individualized assessment only for those who are identified by the targeted screen also means that individualized assessments should not result in “significant costs” for businesses. Thus, the individualized assessment is a safeguard that can help an employer to avoid liability when it cannot demonstrate that using only its targeted screen would always be job related and consistent with business necessity.
Helpful Guidance or Continued Uncertainty?
The EEOC’s response appears to simply restate its position on the two-step process it suggested last year. Yes, the EEOC “encourages an opportunity for individualized assessment,” but it still appears to many that the EEOC’s “encouragement” is really a warning that individual assessment is required. Unfortunately, this doesn’t make it any easier for an employer to know whether their screening processes will ultimately prevail if challenged by either the EEOC or applicants denied employment as a result of a criminal history screen. The EEOC appeared to be confident in its position, but it refused to comment on two pending criminal background cases mentioned by the Attorneys General in their letter. The refusal to comment on the pending cases could indicate that the EEOC might be a little gun-shy in criminal background cases given the recent scolding it received from a federal appeals court about the utter failure to prove its statistical case of disparate impact. (See our article “Criminal Background Checks – EEOC Scolded by Federal Court.”)
What This Means for Employers
The use of criminal background checks will continue to be a focus of EEOC scrutiny. Although the EEOC says that the individualized assessments are not required, the implication is that employers who skip that step do so at their peril. So, to have a better chance of defending their hiring practices, employers should consider the suggestions we made last year when the EEOC issued its Enforcement Guidance:
- Review employment applications for questions about arrest and conviction records;
- Review policies relating to arrests and convictions;
- Train management on the proper use of criminal history information;
- Ensure that third parties conducting background checks are complying with the Guidance;
- Justify any exclusion based on criminal history in light of nature of the crime, the time elapsed and the nature of the job; and
- Allow for individualized assessments rather than applying blanket exclusions.
Reference: EEOC’s Response to Letter from State Attorneys General on Use of Criminal Background Checks in Employment, August 29, 2013If you have any questions, please contact Steve Lyman at slyman@wp.hallrender.com or your regular Hall Render attorney.
