EEOC Enforcement Guidance on Use of Criminal Records

The anticipated “new” Guidance in EEOC on criminal records was issued on April 25, 2012 and became generally available on April 27, 2012. In summary, the new Guidance is a refinement of existing restrictions rather than an overhaul of the existing standards. One might say this announcement may be interpreted as an attempt to “get serious” about the existing standards. The original standards were adopted on February 4, 1987. These long standing guidelines are basically: (1) Consider the nature and seriousness of the offense; (2) Consider the length of time since the conviction/release from confinement; and (3) Consider the nature of the job (how does the criminal conduct relate to the job).

The EEOC’s actions are in response to a serious social concern. In its report it acknowledged that 1 in 3 African-American males have a criminal record. Some statistics we have reviewed shows that the rate is 3 out of 4 in some inner cities. As a society, such a large group cannot be permanently unemployable. If they cannot obtain employment they have no choice but to continue a life of crime to the detriment of everyone. On the other hand, the EEOC acknowledges the legitimate concerns of employers regarding the potential risk ex-convicts pose.

Much of the 26 pages of text cover the legal principal of adverse impact. Adverse impact deals with neutral employment policies that have a disproportate impact upon minorities. It is unintentional discrimination. The EEOC discussion closely follows the presentations by Art Cohen and Larry Henry presented at past NAPBS conferences. You may wish to visit those materials again on the NAPBS website.

The bottom line is that the EEOC wants employers to individually assess each applicant/employee who may be screened out because of a criminal record. This follows the process under the Americans with Disabilities Act (“ADA”). Generally, the EEOC wants to add a pre-adverse action process similar to that currently existing under the FCRA. Thus all employers will have this type of process, although not as formally set forth for information contained in consumer reports under the FCRA. This for CRA customers the process will not be new, however the review period prior to taking adverse action may be longer than provided under the FCRA.[1] This process will first determine if the report is inaccurate or reflects the current status of a record (has the conviction been expunged?). Again, nothing new to CRAs or their customers here. The Guidance does not make databased reports illegal, but the EEOC acknowledges the problems with them and this review period will protect the consumer from inaccurate or outdated records.

If the record is in fact correct, then the employer must assess the risk that person may pose, not only using the three factors above, but also such things as consideration of evidence of rehabilitation (training, evaluation, professional help); a record of employment showing no harm for the potential risk and/or character references. It seems that the evidence of prior successful employment after a conviction is a very important factor to the EEOC. Frankly, a good work record may be the best evidence of rehabilitation. This consideration presents business opportunities for the consumer reporting agencies to conduct more job verifications. However, these type of reports will be investigative consumer reports because the report must include an evaluation of a person’s work. A list of the “new” considerations is attached to this Alert.

The EEOC acknowledges that not all crimes must be individually assessed, but it gives no examples. However, one would assume that those convicted as being a child molester do not receive individual assessment when applying for work as child care workers. Although one EEOC example did accept rejection of an employee who had a recent conviction for theft where the employee will handle credit card charges and also have access to customers’ personal property, unfortunately most of the examples used by the EEOC are so obvious that they provide little guidance. The real world presents far more hairsplitting situations than are in the examples.

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