By Andrew M. Moskowitz
Interviewer: Do you have a criminal record?
Rocky: Nothin’ worth braggin’ about
— Rocky II (1979)
At the end of April 2012, the U.S. Equal Employment Opportunity Commission (EEOC) issued an enforcement guidance document regarding the use of arrest or conviction records in employment decisions.
In that document, the EEOC concluded that an employer who uses an applicant’s criminal history as a basis for making employment decisions may in some instances violate Title VII of the Civil Rights Act of 1964.
The EEOC stated that, to avoid running afoul of Title VII, an employer must be able to demonstrate that its policy is required for the position, narrowly tailored, and consistent with business necessity. In addition, an employer must afford individuals an opportunity to explain why the policy should not be applied to them.
Below is a summary of the EEOC’s findings and a discussion of employer best practices as recommended by the EEOC. This article addresses Title VII only. Numerous other laws may apply, including state laws that impose greater restrictions. In addition, federal law prohibits individuals with criminal records from serving in certain positions or holding particular licenses. The applicability of these other laws is beyond the scope of this piece.
The EEOC’s findings
The EEOC made clear that a policy that “would automatically place every individual convicted of any offense, except a minor traffic offense, in the permanent ranks of the unemployed” will not survive a challenge under Title VII. Thus, for example, an online job application process that automatically terminates when the applicant “answers affirmatively to the question ‘have you ever been convicted of a crime?’” would not be permissible.
Even more narrowly crafted policies may not survive a challenge under Title VII. The EEOC examined a scenario in which a company acquired a competitor and, in reliance on a policy that prohibited the employment of anyone convicted of any crime related to theft or fraud in the past five years, terminated a 5-year employee. The employee was an African-American male who had received high marks during his employment for reliability, trustworthiness, and honesty. He had also pleaded guilty to misdemeanor insurance fraud five years ago. The EEOC found that, because the company’s policy did not allow individuals to demonstrate why this prohibition should not be applied to them, it would likely find reasonable cause to believe that Title VII was violated.
In contrast, the EEOC found that a narrowly tailored policy which afforded individuals an opportunity to plead their case would not violate Title VII. The example provided by the EEOC was a community center that prohibited anyone convicted in the past four years of a theft crime—e.g., burglary, robbery, larceny, and identity theft—from working in a position with access to personal financial information.
The basis for this policy was “data from the County Corrections Department, national criminal data, and recent recidivism research for theft crimes.” In addition, the community center “offer[ed] an opportunity for individuals identified for exclusion to provide information showing that the exclusion should not be applied to them.”
The EEOC noted that the policy was narrowly tailored, for a limited time period, and based on objective data. Moreover, it afforded “individuals an opportunity to explain special circumstances regarding their criminal conduct.” Accordingly, the EEOC stated that it would “not find reasonable cause to believe that discrimination occurred because the policy is job related and consistent with business necessity.”
Best practices for employers
In addition to advising employers to train managers, hiring officials, and decision makers about Title VII and its prohibition on employment discrimination, the EEOC also made several specific recommendations regarding the use of arrest or conviction records in employment decisions.
1. Do not initially inquire about an applicant’s prior criminal background and do not automatically exclude individuals who have a prior criminal conviction.
The EEOC advised employers not to inquire about an applicant’s prior criminal convictions on initial job applications. In addition, it recommended eliminating policies or practices that exclude people from employment based on any prior criminal conviction. Instead, the EEOC advised employers to develop a narrowly tailored policy that considers the nature and gravity of the crime; the time elapsed since the offense occurred; and the essential requirements of the position.
2. Afford applicants an opportunity for “an individualized assessment” and keep information regarding criminal history confidential.
The EEOC suggested that employers provide notice to individuals who have been excluded based on a criminal conviction and offer them an opportunity to demonstrate why the exclusion should not be applied.
The EEOC recommended that employers review this additional information to determine whether it warrants making an exception. In making such an individualized assessment, employers should consider a variety of factors including: the number of offenses for which the individual was convicted; the individual’s age at the time of conviction or release from prison; rehabilitation efforts; and his or her prior employment history.
Finally, the EEOC also advised employers to ensure that they keep information concerning individuals’ criminal records confidential.
As the above demonstrates, a policy that bars the hiring of individuals with a prior criminal or arrest record will not survive a challenge under Title VII. However, where an employer crafts a narrowly tailored policy specifically designed for the position, and which affords an individual the opportunity to explain the circumstances surrounding his or her criminal conduct, such a policy should not be deemed discriminatory. Particularly if the employer adheres to the EEOC’s recommended best practices, it should not face liability under Title VII.
Andrew M. Moskowitz is a partner in the employment & labor and litigation practices at Pashman Stein, PC, in Hackensack, NJ. Contact him at email@example.com.