New EEOC Guidance on the Use of Conviction Records

The EEOC yesterday published its long-awaited Enforcement Guidance on employers' Consideration of Arrest and Conviction Records in making employment decisions. You can access the lengthy document here.

My initial review of the document indicates that, while it is not as bad as many of us feared (the EEOC tends to extend its reach well beyond the scope of logic, in most cases), it continues the Department of Labor's disturbing trend of limiting employer discretion with respect to the implementation of general policies and rules across a workplace. In other words, the Commission continues to review and evaluate employer decisions as if they were all Americans with Disabilities Act situations-it's becoming increasingly difficult for an employer to have a consistent policy that applies across the board without running afoul of the EEOC's biases.

The Enforcement Guidance divides its analysis into two parts-one for disparate impact cases and one for disparate treatment cases. The disparate treatment analysis is fairly straightforward and commonsensical-you can't treat people with similar conviction records differently based on membership in a protected class.

The disparate impact analysis is another matter. The EEOC significantly overreaches here, and any employer using conviction records on its applications or as a screening device needs to be aware of the significant burden that the EEOC is imposing on the employment decision-making process.

As an initial matter, it is not hard to demonstrate that use of criminal conviction data has a disparate impact on protected populations. The Guidance itself notes that black and Hispanic populations are subject to arrest in numbers significantly disproportionate to their representation in the general population. These dissimilar numbers carry on through the rest of the criminal justice system, with disproportionate conviction and incarceration rates as well.

Once disparate impact is established, it is the employer that has the burden of production of persuasion to demonstrate that the challenged practice-use of conviction data-is job-related for the position in question, and consistent with business necessity. Arrest records are of particular concern, the Guidance clearly states that employment decisions based solely on arrest records are never job-related or consistent with business necessity. This is not surprising; the Commission has taken this position for many years because of the fact that arrests frequently do not result in convictions, and are not necessarily indicative of anything other than being at the wrong place at the wrong time. The Commission notes that an employer may inquire into the conduct underlying the arrest and determine that the conduct renders the applicant unfit for employment, and that such a decision would not be discriminatory.

Most employers have hiring policies inquiring about convictions, and typically will exclude employees for consideration if they have a felony conviction. As noted above, the Commission Guidance directly opposes any type of systematic screening based on such a straightforward test. Instead, the Guidance requires that an employer using conviction data (which the Commission refers to as a "criminal conduct exclusion") must establish a systematic, individualized inquiry for each employee affected, in order to avoid disparate impact claims. This inquiry can take one of two forms-the employer can validate that the job for which it is conducting the screening is directly affected by the criminal conduct at issue, as described in the Uniform Guidelines on Employee Selection Procedures (the intricate and highly complex statistical study for such a validation is described at 29 CFR Sec.1607.5); or the employer can develop a "targeted screen" considering the nature of the crime, the time elapsed, the nature of the job, and then providing the employee an opportunity to demonstrate that there were special circumstances in her case that show that she should not be excluded.

Either of these procedures imposes a huge burden on employers. The description of the individualized assessment required by the targeted screening process alone lists nine separate factors an employer should consider for each employee before a valid conviction record determination can be made. Of particular concern is the Commission's requirement that the employer demonstrate a job performance correlation between the specific criminal conviction and the specific position at issue; the Guidance lists several scenarios demonstrating that an employer that uses conviction data as a general screening device will simply not prevail in an EEOC inquiry.

The Guidance closes by delineating the EEOC's version of "best practices", which not surprisingly start with a recommendation that employers eliminate policies or practices excluding people from employment based on any criminal record. These "best practices" go on to describe extremely narrow and highly detailed policies and procedures that effectively preclude any type of generalized conviction policy. Given that this is an Enforcement Guidance, every human resources director involved in hiring policies should carefully review the requirements here and begin to incorporate them into company employment processes.