THE EEOC's New "Guidance" on Employment Background Screening.

What could be scarier during the Halloween season than discussing new government regulations on employers? (Insert blood curdling scream here.) On April 25, 2012 the Equal Employment Opportunity Commission (EEOC) issued new "Guidance" (Guidance is literally the term used when referencing the new 2012 EEOC provisions) in regards to the long standing Title VII regulations. More specifically, the EEOC's new Guidance addresses the "Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions” under Title VII of the Civil Rights Act of 1964.  The new Guidance does affect how you utilize pre-employment background checks, and the revisions aren't all that simple.  Trying to follow the EEOC's new Guidance to the letter would leave most employers bound by red tape from citing statistics and studies during the hiring process.  At this point the finality, and even legality, of the EEOC's new Guidance is questionable as many, including Congress, feel the EEOC has overstepped its bounds. Even though the EEOC does not create laws, they can and will go after businesses they feel are not adhering to the new guidelines.  To date, the anti-Guidance backlash from groups representing the private sector, as well some on Capitol Hill, has not been loud enough to impact the EEOC's decision to enforce the new Guidance. Here we take a summarized look at the new EEOC Guidance and what you, as an employer, can do to to stay in the good graces of the EEOC.

Quick History
The EEOC’s purpose has always been to enforce Title VII, which prohibits employment discrimination based on race, color, religion, sex, or national origin. It's important to note that having a criminal record is not listed as a protected basis in Title VII. Therefore, whether a covered employer’s reliance on a criminal record to deny employment violates Title VII depends on whether it is part of a claim of employment discrimination based on race, color, religion, sex, or national origin. In order to determine if discrimination exists, the EEOC looks for the existence of factors known as “disparate treatment” and “disparate impact.” 

What is Disparate Treatment?
Disparate treatment is discrimination in which “the employer simply treats some people less favorably than others because of their race, color, religion, sex, or national origin”. Whether or not an employer can be found liable “depends on whether the protected trait…actually motivated the employer’s decision”.

What Is Disparate Impact?
Disparate impact focuses on discriminatory consequences. Disparate impact involves “employment practices that are facially neutral in their treatment of different groups, but that in fact fall more harshly on one group than another and cannot be justified by business necessity. It's important to note that motive is NOT required to prove disparate impact.

Why Is the EEOC Making Changes Now?
With the "Great Recession" resulting in a high percentage of unemployed people, there's far more applicants than normal in a smaller pool of available jobs. As they are tasked to do, the EEOC looks for ways to level the playing the field with job applicants and assure that protected groups are not being discriminated against.  The EEOC looked at statistical data collected between 1991 and 2011 and noted a significant increase in the number of Americans, particularly in the working age population, who have had contact with the criminal justice system.   

• 1991:  1.8% of the adult population had served time in prison.
• 2001:  2.7% (1 in 37 adults) had served time in prison.
• 2007:  3.2% of all adults in the United States (1 in every 31) were under some form of correctional control involving probation, parole, prison or jail.
• The Department of Justice’s Bureau of Justice Statistics has concluded that if incarceration rates do not decrease, approximately 6.6% of all persons born in the United States in 2001 will serve time in state or federal prison during their lifetimes
• African Americans and Hispanics are arrested at a rate that is 2 to 3 times their proportion of the general population. "Assuming that current incarceration rates remain unchanged, about 1 in 17 White men are expected to serve time in prison during their lifetime; by contrast, this rate climbs to 1 in 6 for Hispanic men; and to 1 in 3 for African American men.”  EEOC Guidance April 25, 2012

The resulting determination by the EEOC was that the disproportionately high number of job applicants belonging to to protected groups will be found to have a criminal record during a pre-employment background check thus reducing their chances for employment unfairly.  While the EEOC did not change the basic framework of Title VII to include convicted individuals as a protected group, they did add language that has opened the door for the EEOC or applicants to claim discrimination far more easily.  In short, employers would have to thoroughly document why an applicant with a criminal record was not hired in order to avoid potential discrimination claims.

What Employers Can Do To Stay In The EEOC's Good Graces?
Easy as 1,2,3,4,5,6,7,8,9...  

The EEOC's April 12th Guidance provides several suggestions and best practices for employers to follow when using criminal background checks to make employment decisions.  


(The Easy Parts)
Get Hiring Managers Up To Speed

• Don't utilize blanket policies or practices that exclude people from employment based on any criminal record.  
• e.g. We do not hire anybody that has a felony record.
• e.g. We do not hire anyone that has a criminal conviction in the last 3 years.
• Train managers, hiring officials and decision makers about Title VII and its prohibition on employment discrimination.

Questions about Criminal Records

• When asking questions about criminal records, limit inquiries to records for which exclusion would be job related for the position in question and consistent with business necessity.

Confidentiality

• Keep information about applicants’ and employees’ criminal records confidential. Only use it for the purpose for which it was intended.

(The Harder Parts)
Make Policies:  Document Document Document! 

• Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct.
• Identify essential job requirements and the actual circumstances under which the jobs are performed.
• Determine the specific offenses that may demonstrate unfitness for performing such jobs.
• Identify the criminal offenses based on all available evidence.
• Determine the duration of exclusions for criminal conduct based on all available evidence.

(The...Are You Serious? Parts)

• Include an individualized assessment.
• EEOC Suggestions:
• (a) inform the individual of his/her exclusion based on a criminal record
• (b) provide the individual an opportunity to demonstrate that he/she should not be excluded.
• (c) consider whether the individual assessment shows that the exclusion policy should not be applied.
• Record the justification for the policy and procedures.
• Note and keep a record of consultations and research considered in crafting the policy and procedures.
• Train managers, hiring officials, and decision makers on how to implement the policy and procedures consistent with Title VII.

The Bottom Line
Although the 2012 Guidance is not legally binding, the EEOC can and will audit companies it believes are non-compliant. Only time will tell how much weight the courts give to the Guidance when ruling on Title VII cases from here on forward. While "to the letter" compliance is arguably not feasible for most companies, you can bet that those which make a solid effort to adapt will be safer than those that choose to test the legal waters by ignoring the Guidance in its entirety. Ask your background screening provider if they offer a criminal record decision matrix which could help simplify the most difficult aspects of the EEOC suggested compliance measures.

About the author:

Brad Jones is President of Background Screening Consultants LLC (DBA SafeScreener.com), an applicant background screening and drug testing firm in Chicago. Brad has worked with hundreds of corporations, nonprofit organizations, and government agencies to establish F.C.R.A compliant applicant screening protocols since 1996. Prior to being fully engaged with the background screening industry, Brad specialized in fraud investigations and complex due diligence related to corporate acquisitions at Investigative Research Consultants Inc, a detective agency in Chicago. Brad is an active member of the National Association of Professional Background Screeners as well as a Chicagoland Chamber of Commerce member, serving on the Health and Wellness Coalition as well as the Workplace Well-Being Committee.  Brad can be reached at bjones@safescreener.com or 312.985.5010 x113

Background Screening Consultants LLC
www.SafeScreener.com
650 W Lake St
Chicago IL 60661
contact@safescreener.com
888.578.8600

Please note: Any person or entity utilizing a third party to conduct applicant background checks for employment or leasing purposes must follow applicable federal and state laws including but not limited to EEOC Title VII, the Fair Credit Reporting Act and all applicable state laws.  Articles, blogs, newsletter and other materials issued by Brad Jones or any employee of Background Screening Consultants LLC (DBA SafeScreener.com) should not be regarded as, or substituted for, legal advice.