The EEOC press release cites a number of stakeholders including the Society For Human Resource Management (SHRM) who were consulted and said to have approved the guidance as issued. However, SHRM countered in their website response that they have concerns about possible conflict between federal guidance and state laws and in corporate use of backgrounds for some positions.SHRM also expressed the belief a public comment period should have been included in the guidance development process.
The EEOC is charged with enforcing the Civil Rights Act. EEOC guidance is not binding on the courts, but courts do rely on EEOC guidance. Courts have determined that some use of criminal background checks by employers can cause a disparate impact on protected classes of minorities. The new guidance supersedes the old policy statements, but incorporates them in the new guidelines. As a result, there will be many reviews and suggestions on how to deal with the use of criminal histories in hiring.
According to the guidelines, to create a plausible defense employers will need to: establish a “narrowly tailored written policy and procedure for screening applicants;” ensure the policy considers the nature and gravity of the offense or conduct; consider the time that has passed since the offense or conduct, and/or the completion of the sentence; and, take into account the nature of the job held or sought.
The guidance clearly places the burden on employers with the addition of Individualized Assessment. What does it mean? The guidance does not preclude the use of criminal histories, but requires the individual be given a chance to provide additional information that demonstrates he or she should not be excluded, and the record(s) are not job related and consistent with business necessity. The guidance offers relevant individualized evidence such as a mistake in the record and/or the following other considerations (from the Enforcement Guidance):
- The facts or circumstances surrounding the offense or conduct;
- The number of offenses for which the individual was convicted;
- Evidence that the individual performed the same type of work, post conviction, with the same or a different employer, with no known incidents of criminal conduct;
- Older age at the time of conviction, or release from prison;
- The length and consistency of employment history before and after the offense or conduct;
- Rehabilitation efforts, e.g., education/training;
- Employment or character references and any other information regarding fitness for the particular position; and
- Whether the individual is bonded under a federal, state, or local bonding program.
EEOC guidance cites a 2011 study, which indicates recidivism rates decline with the age of the ex-offender. The study shows 26 year olds reoffend at the rate of 19.6% in the first year, and 46 year olds had an 8.8% rate of reoffending under the same condition. This may give employers a feeling of security.
In 2011 we were retained to do a criminal history on a 47-year-old Hispanic male who was convicted of a workplace homicide, which resulted in a civil lawsuit against the employer. The employer allegedly had knowledge there was a criminal history. The criminal history revealed a number of arrests and convictions for drug, robbery, and weapons possession. He also served time in state prison. Interestingly the last arrest in New York State was over ten years ago. Possibly the employer considered age and time since the last offense. But in this case it didn’t prevent him from having to defend his hiring practice at probable great expense.
To further complicate matters, the guidance under best practices recommends questions about criminal records be limited to “records for which exclusion would be job related for the position in question and consistent with business necessity.” The recommendation implies requesting arrest and conviction information on applications for employment may be difficult to justify.
The objections raised by EEOC Commissioner Constance Baker, previously referenced, suggest the commission exceeded its authority in issuing this criminal history guidance. Was this a political decision not based on business necessity? Time, the courts, and expensive litigation will answer the question.