On Wednesday the Equal Employment Opportunity Commission (EEOC) approved in a 4-1 vote updated enforcement guidance governing the legality of considering a job applicant’s or employee’s criminal history when making hiring or other employment decisions. Commissioner Victoria Lipnic (R) joined the Democrat Commissioners in support of the guidance, while Constance Barker (R) was the lone member to vote against the new guidance. The Commission was scheduled to address guidance on reasonable accommodations under the Americans with Disabilities Act (ADA) as well, but did not consider this topic during the April 25 meeting. Although the use of credit history for employment screening had been a topic of discussion during an earlier Commission meeting, the Commission has not issued guidance on this topic either. Given Commissioner Stuart Ishimaru’s (D) impending resignation, it is likely that any new guidance on reasonable accommodation or credit history would need to be a bipartisan effort with only four Commissioners if such guidance is issued at all anytime soon.

In a press release, EEOC Chair Jacqueline Berrien said that the new guidance “clarifies and updates the EEOC’s longstanding policy concerning the use of arrest and conviction records in employment, which will assist job seekers, employees, employers, and many other agency stakeholders.” According to the Commission, the updated guidance incorporates new case law concerning the application of Title VII to employers’ consideration of a job applicant or employee’s criminal history. The EEOC asserts that the guidance “also updates relevant data, consolidates previous EEOC policy statements on this issue into a single document and illustrates how Title VII applies to various scenarios that an employer might encounter when considering the arrest or conviction history of a current or prospective employee.”

The updated enforcement guidance and related Q&A document are available through the EEOC’s website. The Commission asserts that these documents discuss the following topics:

• How an employer’s use of an individual’s criminal history in making employment decisions could violate the prohibition against employment discrimination under Title VII;
• Federal court decisions analyzing Title VII as applied to criminal record exclusions;
• The differences between the treatment of arrest records and conviction records;
• The applicability of disparate treatment and disparate impact analysis under Title VII;
• Compliance with other federal laws and/or regulations that restrict and/or prohibit the employment of individuals with certain criminal records; and
• Best practices for employers.

The guidance includes a detailed discussion of the three factors identified by the Eighth Circuit in its 1975 Green v. Missouri Pacific Railroad decision that were relevant to assessing whether an exclusion is job related for the position in question and consistent with business necessity absent a validation study that meets the Uniform Guidelines of Employee Selection Procedures:

• The nature and gravity of the offense or conduct;
• The time that has passed since the offense or conduct and/or completion of the sentence; and
• The nature of the job held or sought.

The guidance also includes examples of criminal conduct exclusions that do not consider the Green factors, as well as targeted exclusions that are guided by these factors. The guidance also sets forth how an individualized assessment may help an employer avoid Title VII liability. Notably, in recognition of the fact that employers in some industries are subject to federal requirements that prohibit individuals with certain criminal records from holding particular positions, the guidance states that compliance with federal laws and/or regulations is a defense to a charge of discrimination. However, state and local laws or regulations are preempted by Title VII if they “purport[] to require or permit the doing of any act which would be an unlawful employment practice” under Title VII.

For more information on this new guidance, see Littler’s ASAP: EEOC Issues Updated Criminal Record Guidance that Highlights Important Strategic and Practical Considerations for Employers by Rod Fliegel, Barry Hartstein, and Jennifer Mora.

Photo credit: Kirby Hamilton